Tuesday, September 28, 2021

District court told to consider whether NM aggravated assault is still a violent felony

United States v. Sanchez, 2021 WL 4168217 (September 14, 2021) (NM): After an earlier decision, defendant moved to abate the proceedings, (which stayed the filing of a petition for rehearing), until the Supreme Court decided Borden v. United States and Torres v. Madrid. When those decisions were published, defendant filed a petition for panel rehearing asking the court to reconsider its decision in light of those cases. This refurbished opinion shores up the panel’s Fourth and Fifth Amendment analysis and again affirms the district court’s decision to deny the motion to suppress. It also remands Sanchez’s case to the district court to decide whether New Mexico aggravated assault still is a violent felony after Borden.

Misconduct that occurs after the charged conduct is admissible to prove intent

United States v. Tennison, 2021 WL 4168214 (10th Cir. Sept 14, 2021) (KS): In this decisicion about a Kansas methamphetamine conspiracy, the panel finds post-conspiracy misconduct is admissible to establish the accused’s intent to participate in an earlier unlawful criminal enterprise and concludes that evidence in conjunction with other testimony is sufficient to support the conspiracy charge. It also affirms the sentence that is much longer than that imposed on the other participant on the grounds that the other participant cooperated. The government charged Tennison with conspiracy to possess with intent to distribute and possession with intent to distribute more than 50 grams of methamphetamine. At trial, a buyer, Job, testified that she called the ‘drug organization’s’ supplier on behalf of Tennison. She said “someone wanted to buy a kilo of meth for $11,000.” Job was told that much wasn’t available but a 1/4 kilo was for $2500. After Tennison agreed, Job then arranged the sale. She and Tennison met with couriers from the organization in a grocery store parking lot. One of them got into her pickup truck and sold Tennison the meth for $2500. Unbeknownst to them, law enforcement was watching. They pulled them over, ordered Tennison out of the truck and as he stepped out the meth fell out of his pants. Tennison was not arrested then but a warrant for his arrest was issued after the indictment was filed. Six months later, law enforcement went looking for Tennison. They waited outside a house where they thought he could be found. When he pulled up, he was stopped and arrested. Inside the car officers saw hypodermic needles, digital scales and packaging material in “plain view.” During the search they found over a kilo of meth packaged separately in numerous baggies. Tennison wasn’t charged with the meth found in the car but the trial court ruled under Fed.R.Evid. 404(b), the government could present that evidence at trial. In its view, this evidence “helped illuminate his intentions” when he purchased methamphetamine earlier. On appeal Tennison argued the district court shouldn’t have admitted this evidence because the dissimilarities between each alleged possession made the latter irrelevant for Rule 404(b) purposes. The panel disagreed. It explained that an extrinsic act’s similarity to the charged offense is the “linchpin” of the Rule 404(b) analysis. Similarity is assessed through factors like temporal and geographical proximity but admissibility does not depend on those factors being identical. Here, the panel said, similarity “turns on whether the district court could find it more likely than not that Tennison had the same state of mind with respect to the drugs he possessed” on the earlier date and as he did on the later date. Tennison first tried to buy a kilo of meth but got only a 1/4 kilo. A year later he had digital scales, packaging material and over a kilo of meth in assorted baggies. His subsequent possession was relevant to the earlier purchase because it showed “his intent regarding” that meth. It was then up to the jury to decide whether that evidence proved beyond a reasonable doubt the intent element of the crime. The panel added that Fed.R.Evid. 403 did not bar the admission of this extrinsic evidence. Because Tennison argued at trial that the meth he purchased through Job was for personal use, the government was “forced to produce evidence of his intent to distribute.” Although this evidence was prejudicial, it was not unfairly so because it didn’t “subordinate a juror’s reason to his or her emotions.” Tennison also argued that the government’s conspiracy evidence was insufficient to sustain the conviction. Because he was a one-time customer of Job’s, no reasonable juror could have found that he was a member of the larger conspiracy. Specifically, the government did not prove he knew the “essential objectives of the conspiracy,” nor that he “knowingly and voluntarily involved himself with the conspiracy.” Not so, said the panel. A defendant’s participation “may be slight” and “may be inferred by the defendant’s actions.” Even a “single transaction can prove a defendant’s participation in a conspiracy.” Here, the “circumstances of his purchase” prove his “active participation.” Job and the supplier were members of the conspiracy. Tennison asked Job to use her connections to help him purchase methamphetamine. When the courier got into her truck and Tennison paid for the drugs, he “actively participated in the transaction” by paying the drugs. “A reasonable trier of fact could [thereby] infer Tennison’s knowledge of the conspiracy’s objective to distribute meth as well as his voluntary participation in the conspiracy.” Tennison doesn’t benefit from the buyer-seller rule because that rule doesn’t apply when the buyer shares the conspiracy’s objective to distribute large quantities of drugs. Although Tennison claimed the amount he purchased was for personal use, government witnesses testified a 1/4 kilo was an amount consistent with distribution, not personal use. Finally, Tennison argued that the court’s imposition of a 175 month prison term was substantively unreasonable. Given that he and Job played a similar role in the conspiracy and she got only 21 months, his sentence should have been closer to hers. The panel pointed out that Job pleaded guilty and cooperated with the government. Thus, Tennison and Job were not similarly situated and their differing prison terms are both understandable and reasonable.

Defendant did not have a prior conviction for a "crime punishable by imprisonment for one year" under Kansas law; felon-in-possession conviction reversed

United States v. Hisey, 2021 WL 4163499 (10th Cir. Sept 14, 2021) (KS): The panel majority agrees with Hisey that he is actually innocent of the offense to which he pleaded guilty, unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The panel finds that under Kansas law the maximum punishment for the offense which served as the § 922(g)(1) predicate, was probation and drug treatment. Therefore, Hisey had not violated § 922(g)(1) when possessed the firearm because he had not been convicted of a “crime punishable by imprisonment for one year.” Before he possessed the firearm, Hisey was convicted in Kansas state court of possessing controlled substances. Kansas’s sentencing law required the court to impose a sentence of drug treatment and probation, which it did. The court told Hisey if he violated his conditions of probation, it was possible that probation would be revoked and he could be imprisoned for up to 30 months. The panel said that it did not matter that Hisey could be imprisoned within the ‘presumptive’ imprisonment range of 28 to 32 months if he violated probation. Nor did it matter that the state court also imposed a suspended 30 month term. The maximum prison term for the offense is determined by looking at the term this particular individual could have received. The panel found that the state court was obligated to sentence him to probation and drug treatment, “so he could not have received any imprisonment.” The panel explained that what might await Hisey if he violated probation was not part of maximum punishment analysis. Probation revocation was only possible through new proceedings and a new hearing. There the state would need to prove Hisey violated conditions. Yet even if it did so, Kansas law did not require the court to impose a prison term over one year. Rather, it expected the court to start with the lesser sanctions of continuing or modifying conditions and 2-3 days of confinement. Even if the court eventually revoked Hisey’s probation, it had the discretion to sentence him to a term less than 30 months and less than a year. The possible “path to future imprisonment” then is filled with contingencies, and thus, cannot set the maximum punishment this accused faced when he possessed the firearm. Indeed, when Hisey possessed the firearm, he had not violated any of his probation conditions. The panel concluded, the state court “could not have imposed any prison time for the drug conviction” and “given the impossibility of imprisonment,” Hisey did not violate § 922(g)(1) when he possessed the firearm.

Monday, September 27, 2021

Waiver in plea agreement was limited to sentencing challenges; defendant's 2255 petition attacking his conviction could go forward

United States v. Loumoli, 2021 WL 4200766 (10th Cir. Sept. 7, 2021) (UT): The panel holds the waiver in Loumoli's plea agreement, in which he waived his right to challenge his sentence, did not prevent him from collaterally attacking his conviction. Loumoli's 28 U.S.C. sec. 2255 petition challenged his conviction for using or carrying a firearm during the commission of a crime of violence. In contrast, the panel said, the 'plain language' of the waiver illustrates Loumoli waived only a challenge to his sentence. To be sure, the waiver included examples of the court's decisions that came within the waiver. All of them described components of Loumoli's sentence and did not relate in anyway to the determination of his guilt. The panel reversed the district court's order granting the government's motion to dismiss Loumoli's 2255 petition and remanded for further proceedings.

Panel rejects numerous arguments in affirming drug conspiracy convictions

United States v. Cushing & United States v. Hall, 2021 WL 3730687 (10th Cir. August 24, 2021) (OK): in affirming the defendants' conspiracy convictions, the panel explains that even peripheral conduct will satisfy conspiracy's interdependence element. It also takes an expansive view of what constitutes admissible res gestae evidence and expert testimony. The government charged Cushing and Hall with being members of a single methamphetamine conspiracy. On appeal both argued that the government failed to prove interdependence as well as the existence of single conspiracy. They also argued the district court erred in allowing Federal Rule of Evidence 404(b) evidence to masquerade as intrinsic evidence when the alleged conduct occurred outside of the conspiracy's active time frame. Additionally, both said the court should not have allowed an officer to testify as an expert on "drug conspiracy matters" because it gave the jury the false impression he was an expert in solving crimes and deciding who is guilty. To prove the interdependence element, the government must show that the co-conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged. As to Cushing, the panel said the government's evidence adequately demonstrated that he "shared" the "single criminal objective" of the conspiracy's central figure and main supplier, namely, the distribution of large quantities of methamphetamine. More specifically, Cushing was supplier's 2d largest client and frequently was given methamphetamine on credit. Witnesses said they bought methamphetamine from Cushing. From this evidence the jury could infer that Cushing was dealing the methamphetamine he bought from the supplier, "in furtherance of the goal of distributing the charged quantity of methamphetamine." Regarding Hall, the panel acknowledged the government did not prove he distributed for remuneration the methamphetamine he bought from the supplier. No matter, says the panel, "participation in a drug conspiracy . . . includes facilitating the drug operation, such as exchanging information related to concealment and law enforcement activity." The jury heard that Hall warned the supplier of police activity. This furthered the conspiracy's goals by "attempting to keep the operation concealed." And being that profit is not an element of conspiracy, when Hall shared his meth with others, he still was "furthering the distribution objective" of the conspiracy. The panel quickly dispensed with the defendants' objections to the res gestae evidence and expert witness testimony. As to the res gestae evidence, the panel held that the post-conspiracy text messages on Hall's phone showed he was continuing to "engage in the charged crimes -- that is, people continued to come to his house to pick up methamphetamine, in the same manner as during the stated indictment period." Hall's recorded call with the supplier describing his beating of a 'snitch' and his concern law enforcement was descending on him, gave the jury "important contextual information" about his relationship with the supplier. It showed that he sought direction and advice from the supplier, "implying trust and a strong bond." NOTE: it would appear that we too can rely on such evidence to discredit witnesses without running afoul of Fed.R.Evid. 404(b). See e.g., United States v. Montelongo, 420 F.3d 1169, 1174-76 (10th Cir. 2005) (evidence of witness' other wrongs, acts, or crimes is admissible “for defensive purposes if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him."). The panel held the district court did not err in allowing the agent to testify as an expert about user and distribution weights as well as his interpretation of "vague language." The panel said his testimony aided the jury's understanding of the case because "the average person is often innocent in the ways of the criminal underworld." [One wonders how the agent's testimony is, in accordance with Fed.R.Evid. 702, "the product of reliable scientific, technical, or specialized principles and methods" and how he has "reliably applied the principles and methods to the facts of the case."]

Federal assault statute precludes assimilation of similar state crime on federal lands

United States v. Harris, 2021 WL 3730008 (10th Cir. August 24, 2021) (WY): As a matter of first impression the panel holds that the federal assault statute, 18 U.S.C. sec. 113, precludes the assimilation of a Wyoming state assault statute. After a confrontation in Yellowstone National Park, a grand jury charged Harris, through the Assimilative Crimes Act (ACA), with Wyoming's threatening to use a drawn deadly weapon on another. The panel held that the ACA applies only if the act or ommission in question is not made punishable by any enactment of Congress. In the federal assault statute, Congress clearly and precisely delineated a range of conduct that qualifies as an assault within areas of federal jurisdiction. This statute indicates its intent to punish conduct such as Harris's to the exclusion of the Wyoming statute. Even though the Wyoming statute more accurately described Harris's alleged misconduct, that is not the test. Assimilating the more specific state law to punish the same conduct covered by sec. 113 would "substantially disrupt Congress's careful assault definitions." A state law also cannot be assimilated, when, like here, there is a difference in punishment: Wyoming's statute is a felony, whereas one of sec. 113's subsections is a misdemeanor. Nor can a state statute be assimilated just because it requires a different mens rea.

District court testified as a witness when it instructed jury that only one video of defendant's drug deal existed. Error was harmless, though.

United States v. Andasola, __F.4th__, 2021 WL 4166671 (10th Cir. 2021) On redirect, the defendant—who was on the witness stand and facing charges for distributing methamphetamine and heroin—questioned whether the video played for the jury (of him providing drugs to an informant) was the same video the government produced pretrial. Over defense counsel’s objection, the district court followed the government’s suggestion to instruct the jury that only one video existed. On appeal, everyone agrees that the district court erred under Federal Rule of Evidence 605, which prohibits a judge from testifying as a witness at trial. The district court impermissibly commented on a factual issue for the jury. Yet, the error is harmless. Why? Because (1) the district court’s comment didn’t establish an element of the crime; (2) the other evidence of guilt was overwhelming; and (3) the defendant’s credibility was not diminished, again, because there was a lot of other evidence reflecting his orchestration of the video-recorded drug deal.

Denial of suppression motion affirmed; whether officers' unrelated investigations prolonged stop is a factual issue

United States v. Malone, __F.4th__, 2021 WL 3851910 (10th Cir. 2021) Short story: Upholding a suppression loss in a very pretext-y traffic stop. Unrelated investigations—like inquiries into criminality or dog sniffs—don’t run afoul of the Fourth Amendment unless they prolong the stop. Prolongation is a factual question. Longer story: Cops were surveilling a hotel known for criminal activity and zeroed in on a car which they had their cop-buddies scrutinize until a traffic violation occurred. While the driver was looking for insurance and registration, Mr. Malone (passenger/defendant) provided his ID and disclosed he was on parole for burglary of a pawn shop. Cop returned to patrol car while the driver apparently still searching for insurance and registration and found out that Mr. Malone was a suspected gang member. This apparently entitled him to investigate further. Mr. Malone was ordered to exit the car. Cops find a pistol, and eventually charge § 922(g). Defense counsel argued that ordering the exit from the car was a detour. Tenth accepts the exit order constituted a detour, but says officers still acted lawfully because the stop wasn’t prolonged. And because assessing whether prolongation occurred is a factual question, and the appeal didn’t challenge under clear error, the issue was waived. But even if it hadn’t been, the Tenth still would have flushed because it found that arguments made during oral argument were not persuasive—mainly, the time it takes to track down registration and insurance doesn’t add time to render the traffic stop unreasonable.

Friday, September 24, 2021

Supervised release condition banning all access to internet upheld

U.S. v. Egli, 19-4140, 2021 WL 4314242 (10th Cir. Sept. 23, 2021): On plain error review, the court affirms the imposition of a complete ban on internet use: prohibiting the defendant was accessing any computers or the internet, or engaging in any employment that involved internet access. The Court acknowledged that it has been hesitant to approve complete bans on internet access, in this case the defendant had a lengthy history of violating less restrictive bans. Before addressing the merits, however, the Court rejected the government’s argument that Egli had waived the issue and therefore waived appellate review. On the contrary, because there was no evidence that Egli’s counsel had considered the issue and deliberately abandoned it, the issue was forfeited rather than waived. Accordingly, the Court could consider the issue under the plain-error standard. So, defendant won a battle but lost the war.

Acceptance of a pardon is not a legal admission of guilt

Lorance v. Commandant, U.S. Disc. Barracks, 20-3055, 2021 WL 4314248 (10th Cir. Sept. 23, 2021): In an issue of first impression, the Tenth Circuit holds that the defendant’s acceptance of a presidential pardon is not a legal admission of guilt and a waiver of his habeas rights. Moreover, even though petitioner has been released, he alleges sufficient collateral consequences from his conviction so that his case is not moot. Accordingly, the panel reverses the district court’s dismissal of his federal habeas petition.

Monday, September 20, 2021

United States v. Williams, __F.4th__, 2021 WL 3716402 (10th. Cir. 2021)

Mr. Williams pleaded guilty to a single count of bank fraud under § 1344 and stipulated to restitution under the MVRA associated with that count. He survives an appellate waiver and then things take a turn for the worst. He gets hammered by the Tenth for appealing the amount he stipulated to (invited error and/or plain error for not objecting) while wanting to keep other terms of plea (that benefitted him) in place. One interesting argument was an attempt at a categorical approach analysis for the MVRA, stating that the “scheme or artifice” in § 1344 is broader than the MVRA’s use of “scheme.” Within this, it appears that the Tenth is still hanging on to its restitution-isn’t-punishment reasoning, even though this was called into question in United States v. Ferdman, 779 F.3d 1129, 1132 n.1 (10th Cir. 2015) (acknowledging language of Paroline, 572 U.S. 434, 456 (2014) “calls into question [the Tenth Circuit’s] view that the MVRA lacks a penal element”). Mr. Williams also loses a challenge to the substantive reasonableness of his sentence.

Thursday, August 05, 2021

Court affirms district court's "but for" instruction in case involving distribution of heroin resulting in death

United States v. Moya, 2021 WL 3163956 (10th Cir. July 27, 2021) (NM): Moya was convicted of distributing heroin that resulted in someone’s death. The court sentenced him to life in prison. On appeal he argued the district court’s instructions to the jury on the ‘resulting in death’ element were incorrect. He also argued there was insufficient evidence to support the jury’s guilty verdict on that charge. The panel was unpersuaded by either argument. Moya’s requested instruction on the ‘resulting in death’ element required the jury to find that “but for Cameron Weiss’ ingesting the heroin distributed by Moya, he would not have died.” Moya’s instruction also expected the jury to be convinced that Weiss’ use of the heroin was sufficient by itself to cause his death. His instruction explained that an act is a “but for” cause of an event if that event would not have happened without that act. The district court used the government’s proposed instruction instead. That instruction told the jury that it had to find that the death resulted from the use of the heroin. It also said that there was no requirement that Weiss’s death from using the heroin was a reasonably foreseeable event. The ‘resulting in death’ element is satisfied if the government proves that but for Weiss’s ingesting heroin he would not have died. The panel liked this instruction also because it “complied with the Supreme Court’s Burrage decision.” According to the panel, in Burrage the Court held the offense has two principle elements: (1) knowing or intentional distribution of heroin; and (2) death caused by or resulting from the use of that drug. 571 U.S. at 210. Burrage made clear the heroin must be the but for cause of the user’s death, it is not enough that it just contributes to his demise. Id. at 206. The district court’s instructions included these two elements. It also clarified that the government was required to prove ‘but for’ causation. Thus, the court’s instruction was correct. Regarding the sufficiency of the evidence, Moya contended that the government never adequately proved how the heroin Weiss injected sometime between 2300 hours and midnight could have killed him hours later. The panel said there was ample evidence to prove the heroin with which Weiss injected himself three times is what killed him. The government’s two experts both testified that but-for Weiss’ injecting the heroin Moya sold to his Weiss’ friend, Weiss would not have died. Their opinions were based on the autopsy findings, the circumstances surrounding the death and the toxicology report. Although Weiss had cocaine in his system, these experts were confident it did not play a role in his death. Further, one expert explained that heroin can continue to act on a user’s body for several hours after injection. Once heroin converts to morphine, the morphine’s depressive effects on the central nervous system can last well beyond an hour. That testimony, in conjunction with that of Weiss’ fellow addict that sometimes the effects of heroin are delayed, was sufficient for the jury to conclude beyond a reasonable doubt that Moya’s heroin caused Weiss’ death. (You know, as opposed to Weiss bearing some responsibility for his own death when he knowingly decided to inject himself with heroin, a substance he, as an addict, knew could kill him. Just saying.).

Officer's "take-down" lights did not make officer's encounter with parked car a seizure

United States v. Tafuna, 2021 WL 3164039 (10th Cir. July 27, 2021) (UT): The panel held that a police officer had not unconstitutionally seized Tafuna before he found a firearm inside a car in which Tafuna was a passenger. Tafuna, his friend and two others were chatting in a car parked in the corner of a large apartment complex’s lot. Tafuna was in front passenger seat, his friend, the owner of the car, was in the driver’s seat and two others were in the back. It was around 1:00 a.m. An officer pulled up to the car with the front of his marked car pointed toward the driver’s door. He had the “takedown lights” on which shine brightly across the top of the car to illuminate the area in front of it. The officer got out of his car, walked to the driver’s side door and asked the driver and the others what they were doing. He also asked for their names and birth dates. While looking into the car he saw an open beer can in the center console next to Tafuna. The four told the officer they were “just hanging out and talking.” Tafuna gave his name and added that he was on parole and had a knife on him. The officer said he was going to run their names and he walked back to his car. This, led to that, and Tafuna was told to get out of the car. The officer patted him down and seized his knife. Then he searched the car and found a gun under the passenger seat. Tafuna admitted it was his. He was charged with being a felon in possession of a firearm. On appeal Tafuna argued the gun and his statement were the ill-gotten gains of the officer’s unfounded seizure of him. The panel disagreed. It said the officer’s interaction with Tafuna was consensual. When the officer parked his car as he did, a reasonable person would have believed he was free to ignore the officer and continue on with his business. (One wonders how that would have played out if the ‘reasonable person’ behind the wheel decided to drive off.) The officer had not driven up “aggressively” nor did he have his siren and emergency lights on. The way he parked still allowed the driver to drive away and did not impede Tafuna’s movement. The panel also said the takedown lights alone did not make the encounter a seizure. It is not “inherently coercive” for an officer to use those lights. They are necessary for an officer to “safely visit parked vehicles at night.” Additionally, the officer’s conduct outside the car did not turn the encounter into a detention. He walked up to the car and asked the occupants for their names and birth dates. It is not improper for an officer to “ask a few questions” and examine an individual’s identification without having any basis for suspecting criminal activity. Here, the officer did not say or imply that the four had to comply with his request. He delivered his request calmly, without raising his voice. Even though he did not tell Tafuna he had the right to terminate the encounter, that is just one factor in the Fourth Amendment analysis. All the other pertinent factors demonstrate this was a consensual encounter which Tafuna had a right, if he chose, to end. By the time the officer ordered Tafuna out of the car he knew he was on parole and under its terms he was not allowed to possess alcohol or weapons. He had cause then to detain Tafuna and search the car.

Kansas reckless aggravated assault not a crime of violence

United States v. Ash, --- F.4th ---, 2021 WL 3400674 (August 4, 2021): Defendant Dustin Ash pled guilty to two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In United States v. Ash, 917 F.3d 1238 (10th Cir. 2019), the Court held that Ash's prior Missouri conviction for second-degree robbery and Kansas conviction for reckless aggravated battery qualified as “crimes of violence” under U.S.S.G. § 4B1.2(a). See Mo. Rev. Stat. § 569.030; Kan. Stat. Ann. § 21-3414(a)(2)(B) (2010). Ash filed a petition for a writ of certiorari, seeking review of “whether reckless crimes, like Mr. Ash's Kansas reckless aggravated battery conviction, qualify as crimes of violence under USSG § 4B1.2.” On June 21, 2021, the Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Borden v. United States, 141 S. Ct. 1817 (2021). The Court concluded there was “no meaningful basis” to distinguish Borden regarding the reckless aggravated battery issue and said “Borden definitively foreclosed counting Kansas reckless aggravated assault as a crime of violence.” However, because “Borden only addressed offenses with a minimum mens rea of recklessness” the Court did not reconsider its prior holding that “Missouri second-degree robbery is a crime of violence because it requires the perpetrator to overcome victim resistance.”

Tuesday, July 06, 2021

Greer v. United States, __S.Ct.__, 2021 WL 2405146 (2021) Short story: A defendant convicted of being a felon-in-possession of a firearm under 18 U.S.C. § 922(g) after the Supreme Court’s 2019 decision in Rehaif v. United States is not entitled to a new trial or plea hearing unless he “makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” Longer story: In 2019’s Rehaif, the Supreme Court held that a felon-in-possession conviction requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon. Because Rehaif applied to every federal felon-in-possession conviction not yet final as of the date of that decision, the question became whether some or all of those cases needed to be sent back for new pleas or trials—i.e. would it have made any difference in the result had the parties and court known at the time that the government was required to prove knowledge of felon status? Appellate courts varied in handling such challenges, from looking beyond the trial record to the larger “district court” record in a search for evidence demonstrating that the defendant knew of his felon status (like a PSR or the indictment), to a “structural error” approach that essentially guarantees a new hearing in all cases. (All the justices in Greer agreed that the structural error route was a no-go). Kavanaugh wrote for the Court which held that neither Gregory Greer nor Michael Andrew Gary (companion case) had carried their burden of showing a “reasonable probability” that they would not have been convicted had the rule of Rehaif been observed in their cases. Kavanaugh tried to employ what he considered a “common sense” approach: “if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a ‘reasonable probability’ that, but for the Rehaif error, the outcome of the district court proceedings would have been different.” Both Greer and Gary had been convicted of multiple offenses qualifying as felonies under Section 922(g), which by itself constitutes “substantial evidence” that they knew they were felons. Moreover, neither of them argued or made a representation on appeal that they would have presented evidence at trial that they did not, in fact, realize that they were felons. Sotomayor joined the court in Greer but dissented in Gary, saying that she would have remanded the latter case to allow the lower courts to rule in the first instance whether Gary satisfied the majority’s articulated standard. She also listed several reasons a defendant might not know a prior conviction was a felony for federal purposes. At the risk of being overly-lengthy, I’m including here the practice pointers from the Sentencing Resource Counsel, which might be useful for you to preserve the issues well: 1. Supplement your record on appeal. Citing Federal Rules of Appellate Procedure 10(e), the Supreme Court invites appellate defenders to supplement the appellate record with new evidence to support their plain error arguments on appeal. See, e.g., Slip Op. at 5, 10, Sotomayor at 6 n. 1. That’s right. Perhaps as consolation for saying courts could look at the whole record to answer an evidentiary question that was never litigated below, the Court invites us to submit new evidence on appeal that bears on that question. Justice Sotomayor suggests that might include corrections to the PSR that did not matter before Rehaif, evidence of mental illness, or the fact that a prior court erroneously described the consequences of conviction. Query whether the government also gets to submit evidence. But note: I read nothing here to suggest the government gets to submit extra-record evidence in the normal course of appeals to shore up its undeveloped evidentiary record. 2. Object, object, object. The moral of both these stories is, FRCrP Rule 51, 52 require us to object to things even when it feels like we’re just howling at the moon. I mean, we need preserve things we have long lost hope will ever prevail. Think: felons, et al. have 2nd amendment right to bear arms; 922 firearm transported in interstate commerce requirement is insufficient to support federal jurisdiction; charging someone with felon in possession/domestic violence misdemeanor violates double jeopardy because the prior conviction is a lesser included offense; charging someone federally after state conviction/acquittal for same conduct violates double jeopardy; Almendarez-Torres should be overruled; Whren should be overruled; our client must know drug-type/quantity to trigger mandatory minimum; consideration of acquitted conduct at sentencing is unconstitutional after Rita; you get the picture. Not only has the Supreme Court told us we need to do this to protect our clients’ rights, but if we do our jobs well enough, and especially before judges who sit on the Rules Committee, maybe we can get them to amend those rules! If you need other ideas, please see NAFD’s amicus brief in Gary, which details what will happen if the SC requires us to make objections even against a solid wall of circuit authority. Terry v. United States, __F.3d__, 2021 WL 2405145 (2021) Short story: People convicted of certain low-level crack-cocaine offenses are not eligible for sentencing reductions under the First Step Act. Longer story: This one is only saved by the fact that there’s some legislative momentum and hopefully Sotomayor’s vision in concurrence will become a reality (DOJ apparently agrees with the pending legislation, aka the EQUAL Act). The cocaine/crack disparity should not have existed and getting the Court and Congress to right the wrongs of the racist War on Drugs is like pulling teeth. My god. Justice Thomas wrote for everyone except Sotomayor who concurred (and she accused Thomas and the rest of the Court for whitewashing the realities of the disparities--“Black people bore the brunt of this disparity”). Tarahrick Terry was arrested in Florida for carrying just under 4 grams of crack cocaine. This was in 2008, when the law treated offenses involving crack much more harshly than those involving powder cocaine. 21 USC § 841 created three tiers. Tier 1 imposed a 10-year mandatory minimum sentence for offenses involving at least 50 grams of crack or 5 kilograms of powder. Tier 2 imposed a 5-year mandatory minimum for offenses involving at least 5 grams of crack or 500 grams of powder. Tier 3 penalized offenses involving an unspecified amount of cocaine and did not include a mandatory minimum. Terry was convicted under Tier 3 and was sentenced to more than 15 years in prison. Two years later, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine. And in 2018, Congress passed the First Step Act, which made certain provisions of the Fair Sentencing Act retroactive and allowed some people convicted under the old regime to seek reduced sentences. Terry argued that he was entitled under the First Step Act to seek a sentencing reduction. The Supreme Court disagreed. Although Tier 1 and Tier 2 (841(b)(1)(A) & (B)) are “covered offenses” under the First Step Act, Tier 3 offenses are not covered (841(b)(1)(C)). Thomas sticks to a plain-language-statutory-construction argument and concludes: the First Step Act defines “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” the Fair Sentencing Act. The Fair Sentencing Act, in turn, altered the amounts of crack cocaine needed to trigger Tier 1 and Tier 2, but it left the language of Tier 3 unchanged. As a result of the “clear text” of the statute, Terry’s Tier 3 conviction is not eligible for resentencing. In Sotomayor’s concurrence, she called on Congress to pass a new law providing a chance for sentencing reductions to people convicted under Tier 3. She noted that the bipartisan sponsors of the First Step Act had urged the court to interpret the law to provide broad retroactive relief to Terry and potentially hundreds of similarly situated prisoners who were convicted of low-level crack offenses. United States v. Martinez, __F.3d__, 2021 WL 2409396 (10th Cir. 2021) Aric and Theo did what they could, but Judge Kelly and co. affirm the district court's imposition of a 27-month sentence for his burglary conviction under the Indian Major Crimes Act Two main takeaways: (1) Under the Sentencing Reform Act and the IMCA defendants may be sentenced to probation, a fine, or imprisonment pursuant to 18 U.S.C. § 3551(b). But district courts may not assimilate a state provision permitting a conditional discharge. (2) A hammer (or other instrumentality) can constitute a dangerous weapon under USSG §§1B1.1, n.1(E) and 2B2.1 even if not used as a weapon during the burglary offense. Possession of the hammer was enough to sustain the 2-level sentence enhancement.
United States v. Jean-Pierre, 2021 WL 2426203 (10th Cir. June 15, 2021) (CO): Jean Pierre appealed his convictions for conspiracy to commit securities fraud and securities fraud. He argued the district court incorrectly admitted evidence that he had previously used his niece’s signature without her permission to submit attorney letter agreements to a stock trading website. He also argued that the securities fraud convictions should be reversed because the court refused to give his requested instruction which explained the government’s burden to prove a specific factual theory. The panel rejected both arguments. Regarding evidence of Jean-Pierre’s pre-offense use of his niece’s signature, the panel said if the court did err in letting the jury hear that evidence, its error was harmless. Before the government introduced the series of pre-offense letters, it questioned a stock market representative, Jean-Pierre’s niece and presented another group of attorney letter agreements that were part of the charged offense conduct. The market representative testified Jean-Pierre was banned from submitted attorney letters and his niece said she did not work in securities, never signed any of the letters, and Jean-Pierre had access to her signature. The panel said the inference of fraud came from that evidence, not the pre-offense letters and Jean-Pierre did not object to any of it. Thus, any assumed error in admitting the pre-offense letters was harmless. Regarding the Jean-Pierre’s proposed instruction, the panel dismissed the government’s argument that he had not preserved the issue for review. The panel detailed exactly how he had: First, he submitted an instruction that explained the government was required to prove the securities at issue were not subject to a registration exemption. With the proposed instruction, Jean-Pierre detailed the reason for including such language: he could not have deceived investors if the securities were exempt from registration. Second, after the court rejected this additional language, it asked whether there were any objections to the final version of its instructions. Jean-Pierre said he disagreed with the statement in the instructions that the exemption instruction was his proposed instruction. He said the court had not adopted his entire instruction and reiterated the court should add the language on the government’s burden. He again asked that the jury be told it must find beyond a reasonable doubt that no exception excused the securities registration requirement. According to Fed.R.Crim.P. 30, the panel said, Jean-Pierre did enough to preserve the issue. That rule requires a party who objects to any portion of the instructions or to a failure to give an instruction, to tell the court of the specific objection and the grounds for it before the jury begins deliberations. Although a mere tendering of jury instructions, without further objections, will not preserve the issue, that is not what happened here. The panel then reviewed the issue de novo to see if the court’s instructions accurately stated the governing law and provided the jury with an accurate understanding of the relevant legal standards and factual issues. Jean-Pierre argued that the government’s securities fraud theory was aimed at proving he made a materially false statement in representing that the securities offered and sold were exempt from registration. He said the jury should have been instructed that the government had to prove beyond a reasonable doubt that they were not exempt. Not so, said the panel. There are 4 means by which one can commit securities fraud, making an untrue material statement is just one way. The jury was told the government had to prove any of the four means beyond a reasonable doubt. The panel held there is “no requirement that the district court further instruct the jury that the government’s burden applies to a specific means of satisfying that element.” United States v. Xiong, 2021 WL 2430790 (10th Cir. June 15, 2021) (OK): Xiong argued that the district court’s failure to instruct the jury on constructive possession violated his 6th Amendment right to a jury trial. Reviewing for plain error, the panel held Xiong did not show there was a reasonable probability the outcome would have been different. Admittedly, Xiong was not in physical possession of the firearm at issue. And the jury was not instructed, as it should have been, that when one is not in “physical custody” of a firearm, the government has to prove that person still has the power and intent to exercise control over it. Here, the evidence demonstrated that Xiong did have the power and intent to exercise that control. The shotgun was on the floor behind the driver’s seat with the grip facing the front passenger seat where Xiong sat. He could have easily grabbed the loaded shotgun from there. The driver did not have the same access – he would have had to get out of the car and open the back door or “twist around” and “lift the barrel” to get it. The panel concluded that there was “only one plausible conclusion: Though lacking physical custody of the short-barreled shotgun, Defendant retained the power and intent to exercise control over it.” Thus, the outcome would have been the same even if the jury had been properly instructed. United States v. Juranek, 2021 WL 2434009 (10th Cir. June 25, 2021) (CO) (unpub): the panel vacates the sentence and remands to the district court to reconsider its decision that Colorado third degree assault is categorically a crime of violence in light of Borden v. U.S. That offense is perpetrated when a person “knowingly or recklessly causes bodily injury to another person.”
United States v. Broadway, 2021 WL 2546657 (10th Cir. June 22, 2021) (CO): the panel holds that a district court addressing a First Step Act motion to reduce a prison term for a drug conviction should look to the minimum drug quantity associated with the accused’s offense of conviction, rather than his underlying conduct, to determine whether the Fair Sentencing Act would have affected his sentence had it been in effect at the time of the offense. Here, the district court did not start with the offense of conviction and lowered guidelines imprisonment range (because the career offender provisions applied), but skipped to the stipulated drug quantities. It refused to reduce Broadway’s prison term because it said he possessed over 280 grams of crack cocaine and so the statutory penalty and guidelines imprisonment range would have been unaffected by the FSA. The panel held this was legal error. Had the district court started with the offense of conviction, which charged Broadway with possessing at least 50 grams, both the statutory penalty and guideline range would have been lowered by the retroactive application of the FSA. The statutory maximum changed from life to 40 years and the base offense level under USSG § 4B1.1(b) would have be lower, resulting in a lower imprisonment range. The panel remanded and ordered the district court to start its deliberation with the correct guideline imprisonment range.
Lange v. California, 20-18, 2021 WL 2557068, at *7 (U.S. June 23, 2021)(Fourth Amendment – hot pursuit and misdemeanors) Short version: Can an officer in hot pursuit of a misdemeanant enter the misdemeanant’s home? Maybe yes, maybe no. It all depends. Long version: Arthur Lange was having a good time; as he was driving along, he was playing his music loud and honking his horn (in what I presume was celebration of said good time). Alas, a California Highway Patrol Officer (a la Ponch and Jon) did not feel this was appropriate behavior for the staid roads of Sonoma. Our CHP officer followed him for a bit, then decided to pull Lange over. (Had to be Jon; Ponch would have been cool with a good time.) But Lange was four-seconds from home. His garage door went up, he went in, and the door began to go down. Our officer stuck his foot in the garage door causing it to go back up (yay for technology! What you never had a garage door close on your foot? Seriously, yay for technology!) and entered the garage. It seems that Mr. Lange was a wee bit drunk. (And by a wee bit I mean over 3 times the legal limit.) He was arrested for DUI (a misdemeanor). Mr. Lange objected to this intrusion into his home. (California did not see the problem). Enter the Supreme Court to answer the burning question: Does the Fourth Amendment always permits an officer to enter a home without a warrant in pursuit of a fleeing misdemeanor suspect? Answer in three parts: 1) Not always! 2) Remember misdemeanors run the gamut from dyeing chicks an artificial color to assault; 3) Ask do exigent circumstances exist? Are you sure? (Is this really about the teal-dyed chick? No?) Fine. Otherwise get a warrant. Notably, Robert’s concurrence (joined by Alito) would create a bright line rule that hot pursuit no-matter the crime is exigent circumstances unless it’s totally unreasonable. Essentially, he reminds us that pretext works and results in discovery of drugs and guns so let officers chase people who run because, after all, why would you run unless you had something to hide? (Thomas’ concurrence primarily reminds us he does not believe in the exclusionary rule and to revel in history. Much as he did in Mahanoy Area School District v. B.L., No. 20-255 (U.S. June 23, 2021) where, as the lone dissenter, he talked about how back in the day, Vermont let a teacher beat a student because he called him old and that was good because it taught that whipper-snapper a lesson. The majority in B.L. believed the cheerleader could use snapchat to drop a few f-bombs even if it was talking about school.).

Wednesday, May 12, 2021

AUSAs lacked standing to complain about court's comments on their credibility; US Attorney's office's appeal of results of investigation into its office dismissed for lack of jurisdiction and prudential ripeness

United States v. Carter, David Paxton Zabel; Sheri Catania; Kim I. Flannigan; Terra D. Morehead, Objectors – Appellants, v. Federal Public Defender, Movant - Appellee, 2021 WL 1743232 (10th Cir., May 4, 2021) (KS): What’s the matter with Kansas you may be asking. Here, the district court made statements reflecting “negatively” on four Assistant United States Attorneys, who testified in court about practices in their office. They appealed, arguing that the district court deprived them of due process. The panel dismissed their appeal for lack of standing. Specifically they did not have a “particularized and significant stake in the appeal.” The district court’s comments arose from a criminal case, in which the government investigated and then later charged 6 people in a drug conspiracy among detainees and employees at a Kansas detention facility. After the charges were filed the district court found out a prosecutor seized recordings of conversations between detainees and their attorneys. These included soundless videos of meetings and audio recordings of telephone calls. A lengthy investigation with a special master ensued which included an examination into the actions and conduct of the USAO and staff in “procuring, obtaining and using video and audio recordings of attorney-client meetings and phone calls.” The four AUSAs testified as fact witnesses in this investigation. From this investigation the district court concluded that all four were known to engage in “heavy-handed, unfair prosecutorial practices,” (like late disclosure of Giglio and Brady information), abusive charging practices in drug cases and “bait and switch” § 5K1.1 agreements. The court also found much of their testimony regarding what they knew about the seized recordings not credible. The panel said the court’s statements did not trigger appellate standing for these nonparty prosecutors. The four were not “directly aggrieved” by these statements. An adverse credibility finding is not a finding of misconduct. To have standing, a non party attorney must show the court ordered direct restrictions on the attorney. Here, the court did not disqualify them or impose sanctions or make a finding of misconduct. Even a referral for discipline does not confer standing. United States v. Carter, Federal Public Defender, Movant-Appellee, 2021 WL 1743235 (10th Cir., May 4, 2021) (KS): This case relates to the one above. Using Fed.R.Crim.P. 41(g), our fearless FPD colleagues in Kansas moved for the return of the recordings containing attorney-client communications that were seized by the United States Attorney’s Office. That motion lead to the investigation referenced above. In this appeal the USAO argued the investigation into its practices and the office was unlawful, the district court’s statements and findings regarding possible Sixth Amendment violations were incorrect, that court’s contempt findings were clearly erroneous and it also erred in stating it intended to be assigned to the post-conviction cases caused by the investigation’s results. The panel dismissed the USAO’s appeal for lack of jurisdiction and prudential ripeness. Just because the district court’s adverse statements and contempt findings may bolster more than 100 post conviction claims does not mean the USAO was “aggrieved” by those findings as a matter of law. The panel explained that the district court’s statements and findings do not necessarily mean the USAO will be precluded by collateral estoppel from relitigating the same issues in a 28 U.S.C. § 2255 context. And even if the court does rely on its earlier statements and findings in ruling on the § 2255 motions, the USAO can appeal those rulings. The court’s contempt findings were not part of its judgment, nor necessary for its final decision, in which it dismissed Carter’s indictment and ordered that the USAO give the FPD the recordings. Thus, the USAO does not have standing to challenge them in this appeal. Regarding possible Sixth Amendment violations by the USAO, the district court did not make a final determination on whether there were actual violations. It said it would assess each case individually and decide whether that particular person’s Sixth Amendment right was violated. Similarly, its comment that it intended to take on the post conviction cases, was just a comment. The USAO can challenge the reassignments in those cases, if they take place. Finally, the USAO complaint that the investigation was unlawful is moot. Even it had been improper, there is no “effectual relief” the panel could grant.

Court emphasizes need to preserve issues in affirming pharmacist's convictions

United States v. Otuonye, 2021 WL 1743226 (10th Cir., May 4, 2021) (KS): Otuonye was a pharmacist that filled prescriptions at his pharmacy, Neighborhood Pharmacy, written by Dr. Henson for opioids and other control substances. The DEA investigated and Otuonye was indicted for conspiring to unlawfully distribute controlled substances; unlawfully distributing controlled substances; and Medicare and Medicad fraud. A jury convicted him on all four counts and the district court sentenced him to 150 months in prison. On appeal he challenged the admission of certain evidence, the sufficiency of the evidence and the unreasonableness of the court’s sentencing procedure. The panel rejected all of his arguments and stressed the importance of making precise objections and specific arguments in the district court in order to preserve an issue for appeal. Otuonye made 5 evidentiary arguments. First, he said the court incorrectly found Henson was his co-conspirator and therefore his statements were inadmissible under Fed.R.Evid. 801(d)(2)(E). The panel said the district court did not clearly err. A court decides whether these statements are admissible in hearing outside the jury’s presence. There it examines if there is some independent evidence linking the accused to the conspiracy. That evidence must be something other than the proffered co-conspirator statements, but that evidence need not be substantial. Here, there was evidence that a conspiracy existed in that Otuonye knew his pharmacy and Henson’s medical practice were benefitting from Henson’s prescriptions - which was the essential objective of the conspiracy. When other pharmacies rejected Henson’s scripts he referred them to Neighborhood. Naturally the number of prescriptions filled at Otuonye’s increased. Also, Henson and Otuonye communicated during the conspiracy, including when Otuonye asked Henson to also send him three non-controlled substances prescriptions. This he asked for to maintain a certain ratio of non-controlled to controlled sales and thereby avoid scrutiny from his wholesaler and regulators. He also instituted a policy of requiring 3 non-narcotic prescriptions to fill one narcotic prescription. Given this independent evidence, the panel ruled the district court did not clearly err in finding a conspiracy. Second, Otuonye argued the admission of text message exchanges between Henson and his patients violated the Sixth Amendment’s confrontation clause. The panel found that Otuonye had not preserved this issue for appeal because he did not specify whether his objection to this evidence was rooted in the Confrontation Clause or Fed.R.Evid. 802. Counsel said only that the witnesses will not “be on the stand to have any kind of cross-examination.” That is insufficient – counsel must state “the precise ground” for the objection. Third, Otuonye said the district court should not have let the jury hear from Henson’s patients what they did with the controlled substances they bought from Neighborhood. The panel held their testimony that they sold or abused their prescribed opioids was “probative of the fact that the prescriptions lacked a legitimate medical use, an element of the charge against Otuonye.” It also said the evidence was not unfairly prejudicial. It simply illustrated the “foreseeable consequences” of the charge crime. [That might be an argument to make when the government objects your controversial evidence]. Besides, many of the witnesses testified they did not tell Otuonye they were addicts or intended to sell their prescribed opioids. And the defense had the opportunity to question them about Otuonye’s knowledge of their later actions. If Otuonye’s defense was prejudiced, it was minimal, especially when there was more than enough other evidence for the jury to convict him. Fourth, Otuonye argued his case was prejudiced by the admission of cumulative evidence. The panel ruled that he had not shown any cumulative evidence was admitted nor that he was prejudiced by the admission of any such evidence. He also failed to acknowledge that the district court granted some of his cumulative evidence objections and limited the testimony of other witnesses. The panel held Otuonye waived his fifth argument. Since Otuonye raised a different ground for challenging the admission of certain summary exhibits than he did in district court, he forfeited that argument. And because he did not argue for plain error review, the panel finds he waived the issue on appeal. Regarding Otuonye’s sufficiency arguments, the panel holds there was enough evidence for a reasonable jury to find him guilty. Otuonye argued the evidence was insufficient to show that he knew any of Henson’s scripts were illegitimate. Not so, says the panel. Henson and Otuonye met in October 2014. Henson referred patients to Neighborhood when they had trouble filling his scripts at other pharmacies. After October, Otuonye began filling many more scripts for Henson patients and charging them more, thereby substantially increasing his revenue. There also were ‘red flags’ that should have alerted Otuonye that Henson scripts were “outside the usual course of professional medical practice and without a legitimate medical purpose.” Those included: the quantities, strength, types and combination of drugs Henson prescribed; that his patients often paid in cash; that they drove long distances to Neighborhood; and that Otuonye’s relief pharmacist raised these “red flags” with him. The panel said Otuonye’s challenge to the knowledge element of the distribution charge fails for a similar reason. Multiple pharmacists testified these “red flags” should have alerted Otuonye that Henson’s prescriptions did not have a legitimate medical purpose. Given this testimony, it was reasonable for the jury to conclude that Otuonye in dispensing these opioids, he was “willfully blind to the criminality of his behavior.” That evidence of deliberate ignorance was also enough to sustain the Medicare and Medicaid fraud convictions. The panel held that prescriptions that are issued without a legitimate medical purpose are not valid. In submitting them for reimbursement, when he knew or should have known they were illegitimate, Otuonye falsely represented that they were valid. He had no lawful claim to the money he received from these programs. Finally, the panel ruled Otuonye waived his sentencing issue. At sentencing and on appeal he argued that the district court failed to correctly calculate his guidelines because the court assumed all Henson’s scripts lacked a medical purpose despite trial testimony to the contrary. The district court never ruled on this issue but Otuonye did not object to its omission on Fed.R.Crim.P. 32(i)(3)(B) grounds, which requires a court to rule on “any controverted matter.” Thus, he forfeited the issue and by not arguing for plain error review, waived it on appeal.