Wednesday, February 17, 2021

Officer Had Probable Cause to Stop Defendant and Reasonable Suspicion To Search Him; Denial of Motion to Suppress Affirmed

United States v. Torres, 2021 WL 422811 (10th Cir., February 8, 2021) (NM): The panel’s standard of review rulings are helpful in future appeals. However, it finds that the officer had probable cause to stop Torres for a parking violation and reasonable suspicion that he was armed and dangerous which justified a pat down search. The gun the officer found during the search could be used by the government as proof that Torres unlawfully possessed it. Although the district court ruled in the government’s favor, the panel finds that court erroneously viewed the evidence in the light most favorable to the government. Because the court used the wrong perspective for viewing the evidence, the panel disregarded its findings on disputed facts. It also said it would not review the remaining undisputed facts and inferences in the light most favorable to the government. It then looked at the undisputed facts to determine de novo, whether the officer had grounds to stop Torres for a traffic violation and whether his subsequent pat down search of Torres was lawful. The panel ruled the officer had probable cause to believe the SUV he stopped was the same one he saw several blocks earlier improperly parked. It also ruled that the officer did not unreasonably extend the stop. Torres argued the officer should have let him leave after he verified the validity of his driver’s license, registration, insurance, and medical marijuana card. That card did not give Torres a pass the panel implied, because the burnt marijuana the officer smelled gave him reasonable suspicion Torres or his passenger were “violating the federal drug laws’ prohibition against the possession of marijuana.” The officer was allowed then to hold Torres while he asked the passenger questions related to her identity. Any suspicion that developed from her answers “could reasonably extend to” Torres because “a passenger will often be engaged in a common enterprise with the driver.” Since her answers were “fishy,” the officer had reasonable suspicion to detain Torres while they questioned her. Additionally, the panel held that the officer reasonably suspected Torres was armed and dangerous, thereby justifying the pat down search. According to this panel, the following establishes reasonable suspicion that one is armed and dangerous: driving the passenger to an apartment where she tried to buy heroin; the smell of burnt marijuana inside the SUV; the officer believing Torres had a prior conviction for murder; Torres, months before the stop, was shot while unarmed; police suspected the shooting was gang-related; and Torres allegedly refused to cooperate in the investigation of the shooting. “Given Mr. Torres’s lack of cooperation, the police could reasonably infer that he would protect himself by carrying a gun.” Being involved in an attempted drug transaction adds to the reasonable probability Torres would be armed.

Tuesday, February 16, 2021

Warrantless seizure of firearm violated Fourth Amendment

United States v. Chavez, 2021 WL 191660 (January 20, 2021) (published): The panel finds that the warrantless seizure of a firearm from a car Chavez was driving was unreasonable and not justified as an inventory search or by the community care taking doctrine. Chavez sped away from a traffic stop but was chased by an officer. After losing Chavez momentarily, the officer then saw the car up a dirt road parked in front of trailer with its headlights and taillights still on. The officer drove onto the property, got out and saw Chavez’s dog in the car, but not Chavez. Other officers arrived and one noticed that the car “was in the drive gear.” He “worried the car might move forward.” So he opened the driver’s door and put the car in park. While inside he saw on the driver-side floorboard a “rubber grip” that he thought was a handgun in a holster. He left it there and got out of the car. A neighbor told the officers the car and the dog belonged to the man and woman living in the trailer. Another officer found Chavez outside and without Miranda warnings demanded to know if he was a felon. Chavez said he was. The officer arrested Chavez and walked him to his car. The officer said as he walked by Chavez’s car he too saw a firearm under the seat on the floorboard. Another officer checked on Chavez through a law enforcement database. He found out that Chavez had been arrested several times and was driving on a suspended license. With this information, the officers decided to inventory Chavez’s car, then have it towed and impounded. After an officer photographed the firearm inside the car, another seized it. When they were done with the inventory, a woman came from the trailer to claim the car. She said that she and Chavez were in a relationship and he sometimes used her car. An officer verified her ownership and turned it over to her. She said she didn’t know anything about the gun in the car. The officer who had the gun, kept it. The district court ruled the inventory search complied with the 4th Amendment. The officers did not act in bad faith, it said, and although they did not impound the car, they “had reasonably believed the car would be impounded.” Thus, the officer’s continued seizure of the handgun was reasonable. The panel disagreed. It criticized the district court for coming to this conclusion “without analysis.” The officers’ inventory search was not lawful because the Bernalillo County Sheriff Office policy did not allow officers to impound a car from private property. That may only be done when the car is needed as evidence or pursuant to lawful court order. Those exceptions did not apply here. The panel also said the court incorrectly found the officers could inventory the car because Chavez had been arrested. The car was on the owner’s private property and the Sheriff’‘s policy barred the officers from impounding it. Additionally, the court cited no authority justifying the continued seizure of noncontraband property taken during an inventory search, whether valid or invalid, after the impoundment was called off. Further, the panel held the community caretaking exception did not apply. The car was not parked in a public area or at a commercial business, readily accessible to children, vandals or thieves. Instead, it was lawfully parked at the end of a long, private, dirt road, outside an isolated trailer. It was unlikely someone would take the firearm in these circumstances. The panel noted that the women to whom the car belonged could have taken the gun into the trailer. Although she was able to do so, the officer that took the gun never asked her permission to take it from the car. Finally, the panel ruled that the officers did not have probable cause to seize the gun. Although Chavez’s admission that he was a felon could have given them probable cause, he said that without first being told his rights under Miranda. Relying on Vogt v. City of Hays, 844 F.3d 1235, 1241-42 (10th Cir. 2017), the panel said that the Fifth Amendment’s protection against self-incrimination extends to pretrial proceedings, like preliminary and suppression hearings. Thus, the government was barred from using Chavez’s statement to establish probable cause. Without probable cause, the government could not use the automobile or plain view exceptions to justify the officer’s seizure of the gun. These exceptions apply only if there was probable cause to believe that Chavez had committed or was committing a crime involving the gun. Chavez’s noted behavior - maintaining a steady gaze, rolling his shoulder and leaning forward as if to reach something underneath his seat and quickly speeding away might have been reasonably suspicious but did not cross the threshold into probable cause.

Friday, January 29, 2021

United States v. Stein et. al., 2021 WL 233286 (10th Cir. January 25, 2021) (KS): The panel affirms three defendants convictions for conspiring to use a weapon of mass destruction against people and property within the United States and conspiring to violation civil rights. Multiple issues were raised which are addressed below. Jury selection: a challenge to a district’s jury selection plan must be made within 7 days after being put on notice of the alleged deficiencies in the jury selection procedures. That challenge must also include a sworn statement of facts detailing a “substantial failure to comply with the Jury Act.” Here the defendants’ challenge was not timely and did not include a sworn statement. Even if they were not procedurally barred from challenging the plan, they could not show the plan contravened one of the 3 principles underling the Jury Act: (1) the jury selection plan did not prevent the random selection of jurors; (2) although half of the district’s divisions are not summoned for jury service, the defendants did not identify a “cognizable segment of the community” excluded from the jury pool; and (3) selecting jurors only from divisions with an active federal courthouse did not create a new category of exclusion in violation of the Jury Act. Entrapment Instruction: a court must give this instruction when there is a basis for the jury to find (1) the government induced the crime; and (2) there was a lack of predisposition on the part of the defendant to engage in the criminal conduct. These criteria can be established by evidence presented by the defendant or the government. Here, the defendants argued the government’s informant proposed the location and time for the attack, was the first to show one of them the location, urged them to meet with an undercover agent to develop the explosives and echoed the defendants anti-Muslim attitudes. The panel held the instruction was not warranted. The defendants were charged with conspiracy and predisposition is judged by examining whether they were “ready and willing to commit the crime for which they were charged,” – conspiracy to use weapons of mass destruction. Their anti-Muslim rhetoric and efforts to develop explosives predated the informant’s involvement, thus proving their conspiratorial predisposition. Additionally, the evidence did not show their plans would have failed to materialize absent the informant’s involvement. Terrorism enhancement: The defendants said USSG § 3A1.4’s terrorism enhancement which propelled their imprisonment range from 15 to 20 years to life, should have been proven by clear and convincing evidence rather than a preponderance. The panel held that even if that were so, the increase here was not so “extraordinary” that a higher standard of proof was required. The defendants also argued the enhancement did not apply under any evidentiary standard because their offense was not calculated to influence or retaliate against government conduct. Not so, said the panel. Although the defendants’ anti-Muslim sentiment motivated them, their offenses “were also calculated to influence or retaliate against government conduct.” After all, their manifesto was addressed to the US government and aimed to “wake up the American people” to the “tyrannical government.” That was enough proof to justify the enhancement. The panel dismissed defendant Wright’s separate claims of prosecutorial misconduct, improper admission of coconspirator statements and insufficient evidence to support the false statement charge. Regarding the coconspirator statements, the panel noted that before admitting such statements the court should hold a James hearing outside the jury’s presence to decide whether 3 requirements have been met: (1) a conspiracy existed by a preponderance of the evidence; (2) the declarant and the defendant were members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy. The evidence of a conspiracy must be independent of the proffered coconspirator statements. Here, the court heard enough evidence from the informant to conclude the 3 criteria had been met. Regarding the materiality of false statements, the government does not have to prove investigators were actually influenced by Wright’s denial of involvement in the conspiracy. There was adequate proof that his denial “was clearly material to the federal investigation into defendants’ plan to bomb the [] apartment complex.” Of note: Wright attempted to admit tax returns in which the informant misreported payments made to him by law enforcement. At trial he argued Fed.R.Evid. 608 allowed him to do so, but on appeal he used Rule 613. The panel pointed out that the returns would not be admissible under Rule 608 but they might be under Rule 613. The latter rule permits extrinsic evidence of a witness’s prior inconsistent statement. But Wright waived that argument because he did not make it in the district court.

Monday, December 21, 2020

Decarcerating Correctional Facilities During COVID-19 Report

The National Academies Press has a new report, Decarcerating Correctional Facilities during COVID-19:Advancing Health, Equity, and Safety (2020), that can be downloaded for free here. The description begins: The conditions and characteristics of correctional facilities - overcrowded with rapid population turnover, often in old and poorly ventilated structures, a spatially concentrated pattern of releases and admissions in low-income communities of color, and a health care system that is siloed from community public health - accelerates transmission of the novel coronavirus (SARS-CoV-2) responsible for COVID-19. Such conditions increase the risk of coming into contact with the virus for incarcerated people, correctional staff, and their families and communities. Relative to the general public, moreover, incarcerated individuals have a higher prevalence of chronic health conditions such as asthma, hypertension, and cardiovascular disease, making them susceptible to complications should they become infected. Indeed, cumulative COVID-19 case rates among incarcerated people and correctional staff have grown steadily higher than case rates in the general population.

Thursday, December 17, 2020

Government collaterally estopped from renewing prosecution after evidence suppressed

United States v. Arterbury, 961 F.3d 1095 (10th Cir. 2020) (a WIN: collateral estoppel) In 2016, in Oklahoma, Arterbury won a suppression motion (PlayPen Sting). The Government dismissed the case (court granted without prejudice). Government filed an interlocutory appeal, but before briefing withdrew it. Now in Colorado, the Government who lost the same suppression issue, appealed and won based on Leon good-faith exception, in United States v. Workman, 862 F.3d 1313 (10th Cir. 2017). Government in Oklahoma gets excited and re-instates prosecution; Arterbury raises collateral estoppel. District court says collateral estoppel is a due process thing and it wouldn’t be fundamentally unfair to Arterbury to try him. On appeal, the Tenth Circuit says collateral estoppel is a common-law doctrine, and Workman did not change the law so Government can’t avoid collateral estoppel that way - the order suppressing the evidence must stand.

Evidentiary objections rejected; drug conviction upheld

United States v. Cristerna-Gonzalez, ___F.3d___, 2020 WL 3422818 (No. 19-7009, 10th Cir. June 23, 2020) (expert v. lay opinion evidence, bad acts evidence, 403-balancing test, and the importance of objections) Under plain error review, Tenth determines that cops giving expert testimony is admissible generally so here the only question would be if these cops were qualified. Since each had over 15 years of experience the Tenth determined no error. On appeal, defendant contended the admission of bank records showing large deposits to his account in Tennessee (his destination) and cash withdrawals in Phoenix (where he lived), was irrelevant. The Court disagreed and described it as most closely as modus operandi evidence, so no error at all. Lastly, defendant sent money to Culiaca, Sinaloa, Mexico. And prosecutor elicited that notorious cartel was there even though no connection of cartel to defendant. Defense attorney objected, but Tenth Circuit said harmless error because lots of evidence he knew he was transporting drugs.

Felon in possession conviction upheld; Court rejects Fourth Amendment, Miranda claims

United States v. Goebel, 959 F.3d 1259 (10th Cir. 2020) (Fourth Amendment, Miranda) A law enforcement officer heard a report about a reckless driver around 2:45 am; shortly thereafter (about 3:30 am), the officer saw in his rear view mirror a car make an “abrupt” turn in a “high-crime” neighborhood. The officer decided to follow the car. He saw it pull into a driveway (so he stopped some distance away to “observe.”) The driver, Mr. Goebel, got out of the car and go through a gate to the backyard. The officer pulled forward, blocked the car in the driveway, and got the license plate number. He also saw a front-seat passenger, no lights in the house, and a door to a van also parked in the driveway had an open door. He then moved his car so it was no longer blocking the driveway. The front seat passenger got out of the car and started towards the officer, who got out of his car, and spoke to the passenger. The passenger didn’t know the address of the house. Mr. Goebel returned from the backyard and started to get into the driver’s seat. The officer ordered him (and the passenger) to stand on the sidewalk and began to ask why they were there, what the address was, and so on. The officer was not satisfied with the answers he received (that they were there to give Joseph a ride into work and were told to go around to a side door). The officer goes to talk to the back seat passenger, who was just getting a ride home and knows nothing about nothing. Dispatch gets back to him; Mr. Goebel is on probation and had felony convictions. The officer knocks on the door of the house – apparently it took a bit before anyone responded. Homeowner says there is no one named Joseph there, she doesn’t know the people in front of her house, and thought all the doors on the van were closed. She gives permission to search van and backyard. The officer cuffs Mr. Goebel, tells him he’s being detained ‘cause he’s shifty (cop suspicious of auto-burglary and trespass). Mr. Goebel denies wrongdoing and reiterates they’re there to pick-up Joseph. Officer Barleen searches backyard, which has a gate that leads to an alley. The gate is ajar so he searches the alley. And in the alley, there is gun. Mr. Goebel is arrested, Mirandized, and says he knows his rights, and says doesn’t know anything about a gun, admits nothing. (This sort of conversation repeats at police station). Fourth Amendment The district court stated that it must view the evidence in the light most favorable to the government. The Tenth agrees this is the wrong standard, but it wasn’t objected to at the district court level, and was not raised as plain error, so it was waived. But goes ahead and does the plain error analysis; only facts about Mr. Goebel’s driving were disputed. The Tenth Circuit holds that there is no showing how the incorrect standard affected those disputes and no showing that those facts were dispositive to reasonable suspicion analysis. First, the Tenth declares that Goebel was not seized when the cop blocked the driveway – primarily relying on the fact that Goebel was not in the driver’s seat (standard is whether under a totality of circumstances “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” 959 F.3d at 1266). Tacitly admitting that maybe there was no reasonable suspicion when the officer blocked the driveway, the Court found reasonable suspicion by the time Mr. Goebel returns from the backyard because 1) it’s weird to go directly into the backyard at 3:30 am; 2) it’s a” high-crime” neighborhood; 3) the passenger got out of the car to talk to him; 4) passenger didn’t know the address; 5) there were no lights on in the house and the door to the van was open; and 6) Mr. Goebel drove evasively. The Court rejects the argument that a police officer must accept a reasonable explanation of suspicious facts and adds in that this was not a reasonable explanation. Nor did the officer extend the stop unreasonably – he found the gun within 17 minutes. And even if it was error to order Mr. Goebel to wait on the sidewalk – that was not the but-for cause of finding the gun. Therefore, it would not be suppressed. Miranda Despite identifying two conversations on the sidewalk – one when Mr. Goebel returns from the backyard and a second with Mr. Goebel handcuffed but before being Mirandized, the Tenth Circuit only holds Mr. Goebel is not in custody so no Miranda warning was necessary. It does not explain how being handcuffed by police means you are not actually in custody. Instead, it says the conversation was short, on a public sidewalk, and the cop was polite and didn’t make any threats. As for the two remaining statements after being Mirandized, Mr. Goebel's waiver was voluntary. Finally, he never actually said anything incriminating.

19-minute traffic stop not unreasonable

United States v. Mayville, 955 F.3d 825 (10th Cir. 2020) (Fourth Amendment – 19 minute stop is not an unreasonable extension of a traffic stop) Around 2 in the morning, Utah State Trooper stopped a red car for speeding (71 in a 60). Of course, the officer as he approached the car, saw the driver move as if to hide something. Driver gave trooper his out-of-state driver’s license, but couldn’t find the registration. Trooper says he thought driver was “impaired” because he seemed drowsy and confused, and “couldn’t multitask like a normal individual.” Trooper asks dispatch to run the license to check for warrants and for criminal history via a Triple-I check (Interstate Identification Index); he also requests a drug dog. At some point, he moves his car because he’s planning to do field sobriety tests. 14 minutes after the initial stop, the drug dog arrives. Drug dog’s handler asks driver to get out of the car so the dog could search the car. The driver declines. (Dog’s handler says how slow driver was to answer made him think driver was impaired.) The troopers get the driver out for “safety reasons” and the drug-dog sniffs about the car. 19 minutes after the initial stop the drug dog alerts; 30 seconds later, dispatch relays that the driver has a criminal history. The search subsequent to the dog alert revealed a pound of meth, an ounce of heroin, a scale, two guns and a silencer. Defendant argues that by doing the Triple-I check through dispatch instead of with the computer in the trooper’s car, the police unreasonably extended the stop. The Court says cops can check to see if a driver has a criminal history but “officers may not undertake safety precautions for the purpose of lengthening the stop to allow for investigation into unrelated criminal activity.” The district court made a finding that the Triple-I check did not extend the time and that finding was not challenged (the defense contrasted it to the search on license done in the car which took mere minutes). But “even if the Triple I check extended the duration of the stop, Trooper Tripodi’s request for criminal-history records through dispatch was not unreasonable as a matter of law.” 955 F.3d at 832. If this seems to contradict Rodriguez v. United States, 135 S.Ct. 1609 (2015), holding that even de minimis delays caused by unrelated inquiries violate the Fourth Amendment, the Tenth seems to say because the driver made the trooper anxious (the slow responses, the shifty movements) the decision to run the check through dispatch instead of the trooper’s car “did not unreasonably prolong the stop.” The Tenth also says in other circumstances, Triple-I check might unreasonably extend the stop.

Agent's misrepresentations about possible sentence rendered statements involuntary

United States v. Young, ___F.3d___, 2020 WL 3729290 (No. 18-622, 10th Cir. July 7, 2020) (a WIN: confession involuntary despite Miranda warning) Short Version: FBI Agent misrepresented the sentence Young faced, promised leniency including access to the judge. Despite Miranda warnings, and an invocation in previous interview with State law enforcement, Tenth found these misrepresentations and promises so coercive they rendered Mr. Young’s confession involuntary. Voluntariness is a totality of the circumstances calculation; importantly, Court views the coercive nature of statements from defendant’s point of view. The Court also looks to the personal characteristics of defendant to determine susceptibility to coercion. No one factor is dispositive. Long Version: In an interview with local agents, Mr. Young admitted that a small amount of meth (c. 4 grams) found the morning of his arrest was his, but denied that a much larger quantity (c. 90 grams) found later that day was. He then invoked right to remain silent/withdrew consent to speak. FBI Special Agent Brown questioned Mr. Young later and told Mr. Young he had spoken to the judge, and that Mr. Young faced either a five-year or a ten-year charge. Mr. Young was taken aback by federal was on Mr. Young’s side and that each truthful response by Mr. Young would “tick time” off the sentence. (Sadly, the Agent did not give a conversion rate for truthful answers to time off.) Mr. Young had some prior experience with the criminal justice system but was not the Federal system. Turns out, neither five-year nor ten-year possible sentence was accurate; depending on how charged (simple possession or possession with intent) and criminal history, sentence could be anywhere from maximum of 1 year to maximum of 40 years. The Court was not happy with this – acknowledges that cops are not required to tell a suspect of penalties but “if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” The Tenth then put in an interesting parenthetical: Clanton, 129 F.3d at 1158 (“[C]ourts are much less likely to tolerate misrepresentations of law.”). Nor did the Court appreciate Agent Brown’s assertions that Mr. Young could “buy down the amount of time” or “every time you answer a question truthfully, it ticks time off that record.” Again, the Court was pretty blunt, “But that is not the way the federal system works.” Last, but definitely not least, the Court was not happy with Agent Brown’s purported access to a federal judge calling it a “particularly troubling false promise of access to the federal judiciary.” The District court found these promises of leniency and misrepresentations coercive but ultimately did not think they rendered Mr. Young’s statement involuntary. The District court relied upon Mr. Young’s previous experience in the state criminal system, previous invocation of silence, and not giving consent to search his phone. (Yay! Mr. Young listened to one of his lawyer’s at some point.) The Tenth discounted this, pointing out that the Federal system is different and Mr. Young was “visibly shocked” at the federal charges. The panel felt this meant Mr. Young could not “withstand the coercion created by Agent Brown’s legal misrepresentations and promises of leniency.” Thus, his statement was involuntary.

Court holds that assault by brandishing a dangerous weapon has an element of use of force

United States v. Muskett, No. 17-2123, 2020 WL 4726020 (10th Cir. Aug. 14, 2020) (N.M. – Carol/Aric) This case involved a 2255 appeal seeking to vacate a conviction for brandishing in furtherance of a crime of violence post-Davis. The predicate felony was assault with a dangerous weapon, 18 U.S.C. 113(a)(3). The government argued that even though Davis rendered the residual clause unconstitutional, the predicate satisfied the elements clause in 924(c), rendering any problem harmless. The Tenth goes through the frustrating analysis that they’ve been going through lately, effectively rendering the Curtis Johnson Ievel of force (i.e. violent force) a nullity by applying Castleman and Ontiveros (both containing more expansive definitions of “physical force.”) Armed with this logic, the Court holds that 113(a)(3) crimes satisfy the elements clause reasoning “if one has attempted or threatened to inflict injury upon another person (thereby committing federal criminal assault), he has attempted or threatened physical force capable of causing physical pain or injury.” The Tenth also denies a due process/fair notice/ex post facto/retroactivity challenge. On this point, Bacharach dissented. He acknowledged that in 2013, when Muskett committed the crime, the Tenth’s precedent (Perez-Vargas, later overruled by Ontiveros/Castleman) prevented the Court from treating 113(a)(3) crimes as “crimes of violence” because they did not necessarily involve the direct use of physical force. Bacharach concluded that applying Ontiveros retroactively denied Mr. Muskett due process because that holding caused a sea change that was unforeseeable in 2013.

Brandishing conviction based on accomplice's conduct upheld

United States v. Bailey, No. 19-5069, 2020 WL 5083329 (10th Cir. Aug. 28, 2020) (OK) Mr. Bailey committed a series of robberies at Walgreens. For the robbery at issue in this appeal, he coached a kid through the robbery, gave him a firearm and mask, and acted as a getaway driver. He was ultimately convicted of Hobbs Act conspiracy, Hobbs Act robbery and brandishing. Mr. Bailey argued for the first time on appeal that there wasn’t sufficient evidence for the brandishing because the evidence showed that the kid/accomplice did the actual brandishing and the indictment never specifically charged Mr. Bailey as an aider/abettor under 18 USC § 2. The panel found no error occurred at all, and thus the first prong of plain error review was not met, while noting that the issue is better framed as a constructive amendment argument than a sufficiency one. See United States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005) (explaining an indictment is constructively amended if the evidence presented at trial, together with the jury instructions, raises the possibility that a defendant was convicted of an offense other than the one charged). Mr. Bailey conceded that he aided and abetted his accomplice’s brandishing and the jury was properly instructed under Rosemond. See Rosemond v. United States, 572 U.S. 65, 67 (2014) (establishing aider and abettor liability in 924(c) cases). The Court says it is of no consequence that the indictment failed to charge Mr. Bailey as an aider and abettor because aiding and abetting is not an independent crime—all it does is remove any distinction between principal and accessory.

Tenth Circuit affirms precedent that state/federal sentencing law disparities should not be considered

United States v. Begay, No. 19-2022, 2020 WL 5493743 (10th Cir. Sept. 11, 2020) (NM) At sentencing, defendant wanted to introduce evidence that showed the significant sentencing disparities between aggravated assault sentences in state court and federal court. The district court would not allow the evidence precedent didn’t allow consideration of state/fed disparities in sentencing choices. See US v. Wiseman, 749 F.3d 1191 (10th Cir. 2014); US v. Branson, 463 F.3d 1110 (10th Cir. 2006); US v. Beaver, 749 Fed.Appx. 742 (10th Cir. 2018) (unpublished). (However, 18 U.S.C. 3553(a)(6) says nothing about limiting comparisons to disparities amongst federal sentences. 18 U.S.C. 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”)). The Tenth twice extends its “sympathies,” but concludes its hands are tied because precedent is precedent and is unwilling to change the law the Court created.

Minor role reduction incorrectly denied; remanded for resentencing

United States v. Delgado-Lopez, 2020 WL 5509691 (September 14, 2020) (KS): The panel reverses the district court’s denial of a minor role reduction. Unfortunately, this decision imparts to the district courts the lesson that less is more. The panel noted that a sentencing court is not required to explain its credibility determinations, which on appeal are entitled to “extreme deference.” But, when the court details legally unsound reasons for its decision, the reviewing court cannot be “willfully blind” to those errors. Here, the court’s “optional discussion” explaining its finding that Delgado’s statements were not credible and therefore could not support a role reduction was not based on evidence before it. Rather, it was founded on speculation or hypothesis. At the sentencing hearing, the court questioned Delgado. From that, it concluded it made no financial sense for him to be a courier: he could have earned the same, if not more, at his existing job. The panel said the figures the court used to make this comparison were based on speculation. It had no evidence that Delgado could work more hours at his job, nor of the costs involved in the four trips he made, nor that he knew the financial benefits of the arrangement prior to accepting. The court then erred in relying on its own speculation to find Delgado was not credible. The panel also found the court incorrectly based its decision on Delgado not cooperating with the government. The court said without cooperation, he did not deserve to get the same kind of break as those who did. The panel held this was legal error because the court applied the “wrong test” in making a factual finding at sentencing. Nothing in USSG § 3B1.2 permits a sentencing court to consider an accused’s cooperation in making a factual finding about whether he played a minor role. Additionally, the court also erred in not addressing Delgado’s culpability relative to other participants in the drug trafficking organization. (The panel noted on remand, this was not necessary if the court first found Delgado's testimony about his role "incredible."). Judge Eid dissented. Setting aside the court’s credibility decision, in her opinion, there was enough “uncontroverted evidence” in the record to support the denial.

144-month prison term upheld

United States v. Lawless, 2020 WL 6387499 (November 2, 2020) (CO): Lawless appealed the procedural and substantive reasonableness of his 144-month prison term. The panel affirmed the sentence. Lawless detonated or attempted to detonate 5 homemade bombs in 3 separate public places. He pleaded guilty to using a destructive device to commit a crime of violence under 18 U.S.C. § 924(c) and was sentenced to 20 years in prison. Later, Lawless successfully argued that after Johnson v. United States, 576 U.S. 591 (2015) and United States v. Davis, 139 S.Ct. 2319 (2019), arson is not a crime of violence. Consequently, the § 924(c) conviction that presumed it was, was set aside and he was adjudged guilty of arson. At re-sentencing the advisory guideline term was 60 months but the court varied upward to 144 months. On appeal, Lawless argued that the district court procedurally erred when it gave substantial weight to his invalidated sentence; refused to credit his assistance to the government; sentenced him as if he intended to kill and injure others; and did not consider that no one was injured. The panel rejected each allegation, detailing from the record the district court’s explicit discussion of those points. The panel also held the sentence was not substantively unreasonable. It said it would not reweigh the 18 U.S.C. § 3553(a) factors. The district court “thoroughly weighed” each factor, “reached a logical conclusion and detailed its reasoning.” The panel also said the court properly considered the potential harm that could have occurred had Lawless’s bombs detonated as he had intended. NOTE: Lawless preserved his procedural unreasonableness argument by objecting to the court’s sentence on the grounds he raised in his appeal.

Memes posted on social media were admissible as intrinsic evidence

United States v. Alfred, 2020 WL 7329980 (10th Cir. Dec 14, 2020) (CO): A jury convicted Alfred of coercion and enticement to engage in prostitution in violation of 18 U.S.C. § 2422 and facilitating prostitution in violation of 18 U.S.C. § 1952. Alfred argued that the district court abused its discretion when it found that six memes he posted on social media were admissible as intrinsic evidence of the crimes charged and more probative than unfairly prejudicial. The panel held the district court’s ruling was correct. It said the memes were intrinsically part of the charged offenses although they predated the allegations by three years. A jury could conclude from the memes that Alfred was “branding” himself as a pimp. Their age “slightly diminish[ed]” their probative value, but they still were available to anyone visiting Alfred’s profile page. Additionally, they referenced why sex workers benefit from having a pimp. They also established that Alfred’s interaction with Nikki, an undercover agent posing as a potential recruit, was not casual, sporadic or in jest, an element the government had to prove beyond a reasonable doubt. The memes were probative of Alfred using his social media account to facilitate a “pimping business” by showing his viewers and potential recruits the benefits of having a pimp. Thus, in the context of the charges, the danger of unfair prejudice was relatively low, whereas the “maximum probative value” of the memes was “high.”

Stop based on violation of NM law was based on reasonable suspicion; defendant failed to prove public authority defense; motion for new trial properly denied

United States v. Ybarra Cruz, 2020 WL 7330577 (10th Cir. Dec 14, 2020) (NM): A jury acquitted Ybarra of conspiracy to distribute methamphetamine but convicted him of possessing with intent to distribute methamphetamine. The panel finds that: (1) the police had reasonable suspicion to stop Ybarra for a traffic violation; (2) the district court correctly rejected Ybarra's request for an acquittal based on his public authority defense that he reasonably believed he was acting with such authority when he transported methamphetamine ; (3) the district court did not abuse its discretion in denying Ybarra a new trial on grounds that the jury might not have understood that crediting his public authority defense would have required it to acquit on both counts; and (4) the district court did not abuse its discretion when it failed, sua sponte, to instruct on the affirmative defense of duress. 1. Police had reasonable suspicion to stop Ybarra for a traffic violation: Ybarra admitted that while driving on the interstate, the police who were following him (as they were instructed to do by Homeland Security) saw him momentarily cross into an adjacent lane. He argued that traffic stop was unreasonable because the officers did not have reasonable suspicion that he had committed a traffic violation. Although New Mexico courts have held that one will not violate N.M. Stat. Ann. § 66-7-317(A) by momentarily leaving one’s lane, the panel held Ybarra had crossed into the exit lane for four to five seconds! No circumstances would explain this lane deviation and thus Ybarra violated the statute by failing to drive “as nearly as practicable” within his lane. 2. Denial of post-trial Rule 29(c) motion based on public authority defense: This is probably the most important part of the panel’s decision. It holds that for an accused to establish he is entitled to an acquittal based on a public authority defense, he must prove that defense to the jury by a preponderance of the evidence. Case law does not impose a burden on the government to disprove the public authority defense, let alone beyond a reasonable doubt. Here, Ybarra failed to prove his defense because his Arizona HSI handlers testified that before his New Mexico excursion, they had told him he was ‘deactivated.’ After that Ybarra had not communicated with them. The panel concluded a reasonable jury could find that it was not sensible for Ybarra to believe he still was acting as a government information when he transported methamphetamine through New Mexico. 3-4. Denial of motion for new trial: Ybarra argued the interests of justice necessitated a new trial because the jury was confused about whether a successful public authority defense could defeat both charges and because the district court failed sua sponte to instruct the jury on duress. The panel finds the jury would not have been confused because the court’s public authority defense instruction unambiguously directed it to acquit on both counts if it found the defense applied. It also found that Ybarra had not presented sufficient evidence that he was acting under duress. Nor did he show that other alternatives to violating the law were unavailable to him. Notably, at trial, Ybarra did not ask the court for a duress instruction.

Friday, August 28, 2020

Court affirms conviction based on co-conspirator's brandishing of firearm

United States v. Bailey, No. 19-5069, 2020 WL 5083329 (10th Cir. Aug. 28, 2020) (OK) Mr. Bailey committed a series of robberies at Walgreens. For the robbery at issue in this appeal, he coached a kid through the robbery, gave him a firearm and mask, and acted as a getaway driver. He was ultimately convicted of Hobbs Act conspiracy, Hobbs Act robbery and brandishing. Mr. Bailey argued for the first time on appeal that there wasn’t sufficient evidence for the brandishing because the evidence showed that the kid/accomplice did the actual brandishing and the indictment never specifically charged Mr. Bailey as an aider/abettor under 18 USC § 2. The Tenth flushes on the first prong of plain error review (i.e. they found no error occurred at all) while noting that the issue is better framed as a constructive amendment argument than a sufficiency one. See United States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005) (explaining an indictment is constructively amended if the evidence presented at trial, together with the jury instructions, raises the possibility that a defendant was convicted of an offense other than the one charged). Mr. Bailey conceded that he aided and abetted his accomplice’s brandishing and the jury was properly instructed under Rosemond. See Rosemond v. United States, 572 U.S. 65, 67 (2014) (establishing aider and abettor liability in 18 USC §924(c) cases). The Court says it is of no consequence that the indictment failed to charge Mr. Bailey as an aider and abettor because aiding and abetting is not an independent crime—all it does is remove any distinction between principal and accessory.

Tuesday, August 18, 2020

Enhancement for leader/organizer affirmed

United States of America v. Gehrmann, 2020 WL 4280673 (10th Cir. July 28, 2020) (published): Dr. Gehrmann appealed the two-level adjustment under U.S.S.G. § 3B1.1(c) for his aggravating role in a conspiracy to defraud the United States. He and his codefendant, Dr. Carlson, owned and operated a chiropractic center. They were indicted on four felony charges each: one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and three counts of filing false tax returns in violation of 26 U.S.C. § 7206(1). A month later, a cooperator, Dr. Davis pleaded guilty to willfully delivering a false tax return to the Internal Revenue Service in violation of 26 U.S.C. § 7207, a misdemeanor. Dr. Carlson later pleaded guilty to a felony count of filing a false tax return in violation of 26 U.S.C. § 7206(1). After a trial, Dr. Gehrmann was convicted on all four counts. At sentencing, the court applied a total offense level 18 and a criminal history category I, resulting in a Guidelines range of 27–33 months. The Court then varied to a 24-month sentence. On appeal, Dr. Gehrmann raised two issues: 1) the adequacy of the court’s explanation for the two-level enhancement and 2) the evidentiary support for it. At sentencing, Dr. Gehrmann never objected to the adequacy of the court’s explanation of its sentencing decision, so the appellate court reviewed for plain error. It found the district court’s explanation – a conclusory statement that the doctor was “at a minimum, a leader or organizer” -- was not a sufficient explanation, but that Dr. Gehrmann could not show a reasonable probability of a different sentencing outcome on a remand. The enhancement for leader/organizer was supported by the sentencing court’s findings, undisputed findings in the presentence report and the facts in Dr. Gehrmann’s appellate briefs. Dr. Gehrmann had organized the conspiracy with Dr. Carlson and then the two of them had recruited Dr. Davis. Moreover, he oversaw the implementation of the conspiracy. For these same reasons, sufficient evidence supported the enhancement. Judge Lucero dissented. He agreed that the sentencing court failed to make sufficient findings. However, he accused the majority of improperly making its own findings and failing to consider Dr. Gehrmann’s role relative to the other members of the conspiracy.