Tuesday, June 21, 2022

Plain error at sentencing results in defense win

United States v. Farley, ___F.4th___, No. 21-8013 (10th Cir. June 15, 2022) (sentencing: incorrect guidelines calculation is plain error requiring reversal) The Government and Mr. Farley negotiated a plea with stipulated sentence of between 20 and 40 years (for three counts manufacturing kiddie porn) (240-480 months). The PSR puts Mr. Farley’s guideline range as 1080 months. The district court was unhappy with the stipulated sentence and said it wasn’t going to abide by it. Mr. Farley still pleads guilty to the three counts. The Court sentences him 630 months (52 ½ years). In making this calculation the Court said it would have to vary 9-10 levels to get to 40 years (480 months) but only 6 levels to get to the 630 months. The district court's reasoning is not set forth The Tenth Circuit points out that, in fact, the district court would only have to vary one level down – from 43 to 42 – to get a sentencing range of 360 months to life for Mr. Farley’s Category II criminal history. The Court agrees this is plain error because “it is unambiguously contradicted by the guidelines table.” The first two hurdles of plain error review; but Mr. Farley must still prove it affected his substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Mr. Farley succeeds. The trial court relied upon three main ideas in coming to its sentence: “(1) it wanted to vary downward at least some degree from the PSR-recommended 1080 months’ sentence due to Mr. Farley’s mitigating factors, (2) it wanted to run the sentences consecutively so as to respect each individual victim and the seriousness of the offenses, and (3) it did not want to vary down more than six offense levels.” Because the court expressly relied on its idea that it did not want to vary more six levels, the Tenth Circuit concedes that the “error was integral in the district court’s reasoning and acted as a limiting factor in how low it was willing to go.” Relying on Rosales-Mireles v. United States, 138 S.Ct. 1897, 1908 (2018), the Court held a court’s excusal of “obvious errors ... that threaten to require individuals to linger longer in federal prison than the law demands” is likely to diminish the public’s “view of the judicial process and its integrity.”

Monday, May 02, 2022

United States v. Holzer, No. 21-1080, __F.4th__WL 1207861 (10th Cir. Apr. 25, 2022) (challenge to special condition of supervised release is barred by appellate waiver) Federal undercover agents caught Mr. Hozier taking a substantial step towards bombing a synagogue in Colorado. He pleaded guilty to intentionally attempting to obstruct free exercise of religious beliefs through force in violation of 18 U.S.C. 247(a)(2) and (d)(3). As part of his plea agreement, he signed an appellate waiver, which states in relevant part that he “waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless . . . the sentence exceeds the maximum penalty provided in the statute of conviction.” Before sentencing, the district court proposed conditions of supervised release, including Special Condition Nine, which would prohibit him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy. Mr. Holzer objected to the proposed special condition on several grounds, including that it infringed on his First Amendment Rights. The district court overruled the objection, sentencing him to 235 months imprisonment, to be followed by 15 months of supervised release, including Special Condition Nine. On Appeal, Holzer argued that that Special Condition Nine infringes on his First Amendment rights and was not supported by particularized findings of the district court. Mr. Hozier further argued that the appellate waiver is unenforceable because the special condition exceeds the maximum penalty provided in the statute of conviction, thus qualifying for one of the exceptions to the applicability of the appellate waiver included in the waiver itself. The court applied the test set forth in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) for determining the enforceability of appellate waivers: (1) whether the disputed appeal falls within the scope of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. Mr. Holzer argued that the appeal fell outside the scope of the appeal waiver because the waiver itself carved out an exception for its application to sentences beyond “the maximum penalty provided in the statute of conviction,” and the requirement set forth by Special Condition Nine is not contemplated by § 3583, which authorizes the imposition of supervised release. In determining what the “the maximum penalty provided in the statute of conviction” means, the court first evaluated whether the “statutes of conviction” are confined only to the statutes that he pleaded to ( §§ 247(a)(2), (d)(3) and 844(i)), and thus do not pertain to the details of his supervised release term, or whether the “statutes of conviction” effectively incorporate penalty provisions set forth in § 3583. The court agreed with Mr. Holzer that the statutes of conviction included § 3583 because the plea agreement included reference to § 3583. The court next considered whether the term “maximum” could apply to the terms of Special Condition Nine, or whether it only relates to the specific quantity of time prescribed. Relying on common definitions of the word “maximum,” which describe it in terms of magnitude and quantity, the fact that the plea agreement referenced numerical quantities, and case law supporting the conclusion that “maximum penalty” denotes a specific quantity of time, the court concluded that the “maximum penalty provided in the statute of conviction” could not pertain to Special Condition Nine. Thus, the appellate waiver’s exception for sentences beyond the maximum penalty provided in the statute of conviction does not apply to a challenge to Special Condition Nine because it does not set forth a quantifiable term. For the same reason, the court held that the sentence could not exceed the statutory maximum under Hahn’s miscarriage-of-justice exception to enforcing appellate waivers.
United States v. Leal, No. 21-2003, __F. 4th __, 2022 WL 1028985 (10th Cir. Apr. 25, 2022) (affirming a conviction and sentence for conspiracy to distribute at least 50 grams of meth) Mr. Leal was convicted of conspiracy to distribute at least 50 grams of meth under §§ 841(b)(1)(B) and 846 after putting a confidential informant in touch with a codefendant who then put the informant in touch with yet another codefendant who was actually selling drugs. Leal challenged the conviction and sentence on three grounds: (1) there was insufficient evidence to prove his participation in the conspiracy and his knowledge of the drug type and quantity; (2) the government acted outrageously in its investigation; (3) he received a substantively unreasonable sentence. The court rejected all three arguments. 1. First, Mr. Leal argued that the government failed to prove that he “had knowledge of the essential object of the conspiracy,” and, more specifically, that he knew the drug type and the quantity, because his connection to the sale was so attenuated. The Tenth Circuit held that the evidence was sufficient to convict Mr. Leal, even though he only passed the CI on to other contacts and only spoke explicitly about marijuana, because he “participated twice in a series of calls connecting the informant to the person who ultimately sold the methamphetamine” and there were some allusions to meth and the relevant quantities in one of the conversations. [1] 2. Second, Mr. Leal argued that the government acted outrageously in targeting him because he was a “recently released addict with severe cognitive difficulties” and the government informant was highly paid.[2] The Tenth Circuit held, under plain error review, that there was no outrageous conduct by the government here because there was no evidence that the government engineered the purchase; Mr. Leal could not show that the government knowingly took advantage of his vulnerability; and the amount the CI was paid ($125,000!) was not outrageous, given that he received payments over the course of 7 years and payment was not contingent on results. 3. Finally, Mr. Leal argued that the sentence was substantively unreasonable because it was excessive compared to his codefendants (sentenced to 4 and 5 years after accepting plea agreements, compared to his 30 years) and failed to account for his mental conditions. The court (what a surprise!) rejected these arguments, noting that his sentence was more significant due to his status as a career offender, the fact that his codefendants got downward adjustments for acceptance of responsibility, and the voluntary dismissal of some of the codefendants’ charges. The court also noted that disparity is not measured by comparison to codefendants, but by looking at national averages. The court found that the district court considered Mr. Leal’s mental conditions adequately because it acknowledged them. [1]The opinion contains some very involved graphics with various symbols and “legends,” including a very special image of some “crystals,” to demonstrate the connection between Mr. Leal and the sale, which might suggest to reasonable minds that this connection was in fact rather attenuated. 2 These highly relevant facts, which reasonable minds might expect the panel to feature at the forefront of the opinion, are in fact buried deep in the discussion.
United States v. Moore, 2022 WL 1087336 (10th Cir., April 12, 2022) (KS): At sentencing, Moore requested a sentence of time served and three years supervised release. The government asked for a 51 month prison term. The district court offered Moore a choice, 48 months of probation, subject to at least 84 months of imprisonment if he violated any terms of his probation or 51 months imprisonment immediately. Moore chose the former. Ten months after the sentence was imposed Moore violated travel and housing conditions of his probation. These were grade C violations with a recommended imprisonment range of 5-11 months. The district court instead imposed a prison term of 84 months. On appeal Moore argued that sentence was procedurally and substantively unreasonable. The panel agreed. The panel rejected the government’s suggestion that Moore had invited the error. It said that doing so would “shield from our review even a sentence-in-advance sentence all the way up to the statutory maximum.” It wasn’t willing to let that happen. The panel then reviewed Moore’s challenge to the court’s sentencing procedure for plain error. It held Moore proved the district court’s “sentence-in-advance system” satisfied all four prongs of the plain error test. According to Supreme Court and circuit precedent, a district court is supposed to start with the facts, calculate the advisory guideline range and then decide whether a variance is warranted to ensure a just sentence. The court here plainly erred because it set a minimum future sentence without engaging in an analysis that becomes pertinent only after probation is revoked. In other words, the court could not have known when it sentenced Moore originally whether his future conduct categorically would justify at least a 33 month consecutive prison term to its offered 51 month sentence. Consequently, its sentencing procedure was unreasonable. After this, the opinion is confounding and fraught. The panel, in essence described the procedure that should be followed when a court revokes probation. First it analyzed 18 U.S.C. § 3565(a)(1-2). If a court decides that an individual has violated a term of probation, it then, with the 18 U.S.C. § 3553(a)’s factors in mind, must choose between (1) continuing the person on probation with or without modifying conditions or (2) revoking probation and re-sentencing the person. Because the court here revoked Moore’s probation, it was required by § 3565(a)(2) to “resentence” Moore. That meant reevaluating the case as it stood when the court imposed probation. According to § 3553(a)(4)(A), the court had to look at the probation officer’s recommendation, the parties’ objections, the § 3553(a) factors, including the person’s history, characteristics and pre-probation sentencing conduct. This is necessary, the panel said, because the Guidelines in Chapter Seven tell the court if it revokes probation it may “impose any other sentence that initially could have been imposed.” (emphasis in original). The panel then stepped back to the district court’s analysis at the initial sentencing. There the court said a 51 month imprisonment term was appropriate and thus it was one that “could initially have been imposed.” Next, the panel reviewed the policy statements in the Guidelines’ Chapter 7, which it said the district court “must apply.” The district court also must consider “the § 7B1.4 sentencing grid for the probation violation – not the sentence guidelines for the underlying offense.” (emphasis in original). The panel claims that this necessary “two-step” approach to sentencing when probation is revoked is derived from United States v. Kelley, 359 F.3d 1302, 1306 (10th Cir. 2004). But Kelly rejected this approach. There, relying on a Ninth Circuit decision the accused said the district court must consider the guideline range applicable to his underlying offense before the court sentenced him after ordering his supervised release revoked. The Kelly panel said § 3553(a)(4)(A) has no application in a supervised release revocation hearing, instead, the relevant sentencing analysis is girded by the Chapter 7 policy statements referenced in § 3553(a)(4)(B). It noted that the congressional record supported its decision: In § 3553(a)(4)(B), “Congress clearly intended that these guidelines or policy statements rather than those applicable at sentencing, be used by courts when sanctioning probation (or supervised release) violators.” You might be thinking, so what’s the hub-bub, bub? Well, if the court can go back to the original sentencing and the imprisonment range which it forwent in exchange for probation (or a much lower prison term), then arguably it can use that “sentence that initially could have been imposed” to justify a variance well above the recommended imprisonment range from Chapter 7. Moore seems to invite such a procedure. The panel explained that the district court plainly erred because it didn’t explain why an 84 month prison term was appropriate under § 3553(a) and Chapter 7. Its questions at the end of the opinion offer an outline by which the district court can make that prison term procedurally and substantively reasonable. Judge Bacharach dissented. In his opinion Moore invited the sentencing terms imposed to avoid prison. Moore knew the risks because the district court emphasized them repeatedly. And so did his attorney. Because Moore agreed each time to the sentencing terms, he knowingly invited any potential error which vitiated any challenge on appeal. For these same reasons, the sentencing procedure did not seriously affect the fairness or public reputation of the proceedings.

Wednesday, April 20, 2022

Fourth Amendment WIN; traffic stop impermissibly extended

United States v. Frazier, No. 20-4131, __ F.4th___, 2022 WL 1099362 (10th Cir. Apr. 13, 2022) Upon stopping car, Trooper only notices Mr. Frazier has a duffle bag, an air freshener bottle, and partially unrolled window. After securing traditional documents from driver, he learns the car is a rental but Mr. Frazier can’t immediately find the rental agreement but is looking for the rental company info and/or the agreement on his phone. The Trooper asks Mr. Frazier questions as he’s concentrating on a phone and it takes a bit for Mr. Frazier to switch gears and answer the trooper. Mr. Frazier has two legitimate IDs, one from Iowa and one from Missouri. Trooper goes back to his patrol car and immediately requests a dog sniff; as the dog handler is not immediately responsive this takes a bit. Then the Trooper starts to write the ticket, then he thinks to ask dispatch if driver has priors, then he searches DEASIL (traces license plates around the country). The Court held this impermissibly extended the stop. The duffle bag, air freshener bottle, partially unrolled window, the fact that the car is a rental, and Mr. Frazier does not immediately answer questions do not equal reasonable suspicion of drug trafficking so that dog sniff would be ok. There are lots of good gems in this opinion, so it is highly recommended.

Remand for resentencing under FSA

United States v. Burris, 29 F.4th 1232 (10th Cir. 2022) (First Step Act changed guideline range) First Step Act made the Fair Sentencing Act’s remedy for disparities between crack and powder cocaine retroactive. Acknowledging that resentencing is totally discretionary, the Tenth Circuit nonetheless holds that the court must calculate the new guideline range before looking at the 18 USC section 3553(a) factors. Basically, the court applies the maxim correctly calculated guideline range is the starting point for any sentence to a resentencing under the First Step Act.

Tuesday, April 12, 2022

Witness tampering conviction reversed for lack of evidence defendants contemplating a reasonably likely federal proceeding

United States v. Sutton, 2021 WL 1014359 (10th Cir. Apr. 5, 2022) (KS): The panel reverses the convictions of Sutton & Segue for conspiring to tamper with a witness in a federal proceeding in violation of 18 U.S.C. §§ 1512(b)(1), 1512(k). Both Sutton & Segue moved for an acquittal arguing that the government had not shown that they expected the contemplated legal proceeding was likely to be federal. The panel held the district court should have granted the acquittal motion. 18 U.S.C. § 1512(b)(1) requires proof that the individual knowingly used intimidation or threats to influence or prevent the testimony of any person in an official proceeding. The panel said that “official proceeding” refers to federal proceedings. It does not include state judicial proceedings or criminal investigations. Thus, the government had to prove that the proceeding contemplated by Sutton & Segue when they fought another man in the jail with them and whom they believed was an informant, was reasonably likely to be federal. A mere possibility the proceeding will be federal is not enough. Here, the government did not satisfy its burden. It presented no evidence Sutton & Segue contemplated a federal proceeding. Nor did it show it was reasonably likely that the contemplated proceeding would have been federal. Interference with a state proceeding was foreseeable because the man attacked had been arrested by state officials and was in a state jail on state charges. Even if Sutton & Segue knew that the man had spoken to a state police officer who used his information to get a state search warrant from a state judge, there was nothing “federal” about this man’s role. The panel dismissed the government’s argument that a parallel federal drug investigation was on-going. It questioned how Sutton & Segue could have contemplated this investigation. Further, the government did not present any evidence that federal agents knew of the man attacked, nor that anyone in the state jail knew about the federal investigation. One judge dissented.

Wednesday, February 23, 2022

Direct review must be complete before a judgment is final for purposes of a 2255 motion

United States v. Anthony, 2022 WL 363770 (February 8, 2022) (OK): The panel holds that a judgment of conviction is not final for 28 U.S.C. § 2255 limitation purposes until the individual’s sentence becomes final when direct review is complete. The district court sentenced Anthony to a prison term shortly after trial but did not determine the restitution amount until several months later. When Anthony filed a § 2255 motion challenging his conviction, the district court dismissed the motion as untimely. It said that the one year limitations period under § 2255 began to run when Anthony’s time to appeal the initial judgment expired even though restitution proceedings still were pending on direct appeal. The panel said the district court’s reasoning was incorrect. Restitution is part of a criminal sentence and part of the judgment of conviction for § 2255 purposes. (Restitution, after all, serves punitive purposes.) A judgment of conviction becomes final for § 2255 limitation purposes when there is no further avenue for direct appeal of any portion of the sentence, including restitution. When the district court entered the restitution amount Anthony appealed that portion of his sentence. That appeal delayed the finality of the judgment of conviction for § 2255 purposes. Thus, Anthony’s judgment of conviction is not final until the pending restitution proceeding (his appeal) are complete. NOTE: there are two final judgments in deferred restitution cases for direct appeal purposes. One cannot wait to appeal the judgment and prison sentence until the deferred restitution order is entered: the initial judgment and the subsequent restitution order are each immediately appealable final judgments. However, under § 2255(f)(1), there is only one final judgment of conviction. On the topic of restitution, a few words about United States v. Benally, 19 F.4th 1250 (10th Cir. 2021), a case on which we reported several weeks ago. Although reviewing for plain error, the panel ruled against the defense on the restitution issue, it did find that assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6) is not a crime of violence. It said that Borden's reasoning applied not only to violent felonies but also to crimes of violence. Id. at 1257-58. In a footnote, it also rejected the government’s contention that Benally’s arguments in her supplemental brief were barred by the plea agreement's appellate waiver. The panel explained that “the district court effectively modified that provision to allow Benally to appeal the district court’s [restitution] order.” Id. at 1256. Displeased with this note, the government filed a motion to amend the decision. It asked the court to remove the footnote because it claimed it incorrectly stated the law. Our Emily Carey opposed the motion. She argued, inter alia, that a motion to amend is not the pleading by which a party may ask the court to reconsider its decision. The only way that can be done is by a petition for rehearing. The panel agreed with her and denied the government’s motion. This is not the first time the government has used a motion to amend to ask the court to excise portions of an opinion with which it disagrees. It is important that we continue to fight these motions. If one does not oppose the motion, or if one takes no position, the panel likely will grant the motion and remove something that may be useful to our cause in the future. Emily demonstrated that it is worthwhile to challenge these motions.

Tuesday, February 08, 2022

"Waiver" of an Argument Easily Occurs, Hard to Overcome

United States v. Fernandez, 20 F.4th 1298 (10th Cir. 2021): The panel’s decision illustrates how broadly and exacting 'waiver' is interpreted. When officers first boarded a Greyhound bus in Albuquerque it was empty for a brief layover. In a nonpublic area and, with no one watching, one officer pulled Fernandez’s bag off the rack and held it “for 30 seconds” to gauge how “heavy it was” and to “observe all sides” before passing it to another officer to do the same. Because the officers testified by handling the bag they could glean its apparent contents, Fernandez argued they illegally searched it. He asked the court to suppress the methamphetamine they later found inside. The district court denied Fernandez’s request. In its view, the officers had not searched the bag because neither “squeezed or manipulated the bag.” It also said the officers’ handling of the bag was no different from what one could reasonably expect from another passenger: it would not be unusual for passengers to “push, move, and even momentarily remove an item from a common luggage area” to make room for their own bag. On appeal, Fernandez again argued that the officers’ handling of his bag went beyond how one would reasonably expect another to interact with his bag. In his argument he emphasized the aggregate circumstances had to be considered which included that the officers were alone on the bus and that each examined the bag in their hands for at least 30 seconds. [NOTE: the government solicited from the officers that each held the bag for at least 30 seconds. And the court solicited from them that they were alone on the bus.] The panel declined to address the issue because it said was waived. During argument in the district court, Fernandez did not stress the time in which the officers held the bag. Because he made the time a component of his argument on appeal, he waived the argument. The panel said, "there was no reason to believe that the court was even thinking about how long the officers held the bag . . . " [Apparently, how long they held the bag was not part of the 'totality of the circumstances' the court considered in its deliberations.] Given the circuit's unfortunate precedent, United States v. Bowline, 917 F.3d 1227 (10th Cir. 2019), plain error review does not apply. Besides said the panel, Fernandez did not ask for plain error review. [NOTE: The fact that Fernandez did argue the court should review for plain error, if it believed the government’s waiver argument, did not matter to the panel. There is an entrenched circuit split on whether plain error review is available for issues deemed 'waived.'] Fernandez also argued that he did not abandon his bag when he answered ‘no’ to the officer’s question, 'do you have luggage on the bus with us?' To begin with, his answer was not untruthful, because ‘luggage’ as it is commonly understood means suitcase. Fernandez had only a small travel bag. Additionally, the officer’s question was not specific enough for him to have renounced his property and privacy rights in the bag. In Byrd v. United States, the Court emphasized that lawful possession is characterized primarily by “the right to exclude others.” 138 S.Ct. at 1527. Fernandez still retained a superior property right in the bag and at any point before the officer grabbed the bag, Fernandez could have gotten up and taken it to his seat. The panel was unmoved. It said none of its prior decisions require a more specific question than the one asked here. The officer asked Fernandez repeatedly if he had any luggage and he answered no each time. According to the panel, Fernandez abandoned the bag. Regarding Fernandez’s argument that the district court should have questioned the officer in camera regarding his informants at Greyhound, the panel said the court’s ruling was correct. It did not matter to the panel that the district court sustained the government’s privilege objection when Fernandez asked whether the officer paid the informants. Nothing in the record showed that Fernandez could not have asked the officer questions about his informers’ duties. Besides Fernandez could not prove the officer’s informants were the reason that Greyhound did not produce video from the restricted areas in which the officers boarded the bus to ‘pre-search’ luggage.

Speedy Trial Act Violated; Delays in Transfer Were Not Reasonably Excluded From Speedy Trial Clock

United States v. Black, 2022 WL 288173 (February 1, 2022) (KS): the panel finds the Speedy Trial Act was violated and reverses the district court’s denial of Black’s motion to dismiss the indictment. (J. Phillips dissented.). Black was arrested in Missouri and indicted for robberies in both the Western District of Missouri and the District of Kansas. While in Missouri, Black asked the District of Kansas to transfer the charges to Missouri pursuant to Fed.R.Crim.P. 20 so he could plead guilty there. Kansas transferred the indictment to Missouri and then on the docket marked the case and charges terminated. When he was arraigned in Missouri, Black didn’t plead guilty to the Kansas charges. The Missouri court was required by Rule 20 to return the case to Kansas for trial. That was done 6 months later. A month after that the Missouri district court accepted Black’s guilty plea on the Missouri charges. It then waited 50 days to schedule sentencing, which didn’t take place until 11 months after he arraigned. Black appeared in the District of Kansas 16 days later. The government argued that the charges remained pending in Kansas in spite of the transfer, therefore, the speedy trial clock started eleven months after the Missouri arraignment, when Black first appeared in Kansas. The panel disagreed. It held that when Black was arraigned in Missouri, the Kansas robbery charges were pending there. In other words, by transferring the case from Kansas to Missouri, only the Missouri court “had possession and control of the case.” At that time then, the Missouri court was the only court where the Kansas charges were pending. Rule 20, the panel added, treats “a prosecution” as something that can occur only in one district.” Thus, regarding the Kansas charges, the speedy trial clock started on the date Black was arraigned in Missouri. The panel said that a 50-day delay in Missouri and another of at least 54 days in Kansas could not be reasonably excluded from the speedy trial count. Because more than 70 non-excludable days elapsed between Black’s first appearance in Missouri and his motion to dismiss, the Speedy Trial Act was violated. The panel remanded the case to the district court to decide whether to dismiss the indictment with or without prejudice.

Monday, January 24, 2022

Tenth rejects challenges to search warrant, admission of evidence in sex trafficking case

United States v. Palms, 21 F.4th 689 (10th Cir. 2021): A jury convicted Palms of sex trafficking by force and coercion, attempted obstruction of sex trafficking enforcement and transporting an individual for prostitution. On appeal, he made two arguments. First, he said the district court should have suppressed the evidence obtained from his cell phone because the warrant for the phone was insufficiently detailed and the search was not restricted enough. Second, he argued the district court violated his Fifth and Sixth Amendment rights to due process, a fair trial, compulsory process and to present a defense and abused its discretion when it excluded sexual behavior evidence under Federal Rule of Evidence 412. The panel sided with the district court. It held the warrant to search his phone was sufficiently particular and the search was reasonable. It also held the district court did not abuse its discretion in excluding prior ‘sexual behavior’ evidence under Rule 412. Regarding the warrant, Palms said, although it was limited to evidence of human trafficking, it still did not describe the items to be seized with particularity. The panel’s analysis began by looking at whether the offense of ‘human trafficking’ was defined narrowly enough so that nothing was left to the officer’s discretion. Although search warrants do not have to identify specific statutes for the crimes to which they are limited, here, Oklahoma law explicitly prohibits human trafficking. Its definition includes both sex and labor trafficking. Given this statutory definition of ‘human trafficking,’ the officers executing the warrant would have understood what evidence the warrant allowed them to seize. Thus, the panel concluded, the warrant sufficiently limited what the officers could search and seize. Palms also contended that the evidence the officers took from his cell phone “was too broad.” To address this issue, the panel “focused on how the computer search was conducted rather than what was searched.” Since the officer testified he could not search the cell phone within narrower parameters, he “extracted a byte-for-byte copy” by which he “captured a vast amount of information, including personal information unrelated to the suspected crime.” The panel was fine with this method. First, evidence of the crime could be found anywhere on the phone and the officers wouldn’t know in which files to look until they actually reviewed each file. Second, “if the file did not contain relevant evidence, the officers moved on immediately.” At trial, Palms wanted to present evidence that M.W. understood and participated in commercial sex work before she met him. The district court wouldn’t allow it. On appeal, he said that decision violated his constitutional rights to a fair trial, to confront witnesses against him and to present a full defense. The panel disagreed. Even if the evidence is relevant, it must be probative of a central issue to be required by the Constitution. M.W.’s sexual behavior was not probative of a central issue. Evidence that she was a prostitute and solicited customers online before she met Palms was “irrelevant to whether [she] was forced or coerced into working as a prostitute at a later date.” Nor could this evidence be used to impeach her comment that she would not choose prostitution on her own. The panel reasoned her prior acts did not tend to prove that Palms did not force her to engage in prostitution. Thus, it was not evidence that was required by the Constitution. NOTE: Palms also argued that M.W.’s posting of online ads for commercial sex before he met her was not sexual behavior. Therefore, Rule 412 did not apply to bar this evidence. Since he did not make this argument in the district court and did not argue plain error on appeal, the panel held that he waived this issue.