Monday, April 14, 2014

"A Tale of Woe" Insufficient to Prove Ineffective Assistance

U.S. v. Tuakalau, 2014 WL 1303295 (4/2/14) (Ut.) (unpub'd) - The 10th indicates it expects very little from defense counsel when the defendant alleges ineffective assistance of counsel. Counsel was not deficient in failing to anticipate that the government would pursue a RICO prosecution against the defendant based on the offenses he pleaded guilty to and others that were dismissed pursuant to a plea agreement. This circumstance is different from anticipating deportation in Padilla because that was presumptively mandatory whereas the RICO prosecution was discretionary. And there was no prejudice shown anyway because surely the defendant would have taken the plea offer, regardless of the RICO possibility, because he faced 185 years and was guaranteed 30 under the agreement. His "rosy" prediction that counsel's pursuit of a motion to suppress his statements would have succeeded was "speculative." In any event, the RICO prosecution was eventually dismissed. The "stress, trauma and notoriety" resulting from the prosecution was not the kind of prejudice for which § 2255 relief is available under Strickland. As the 10th so sympathetically sums it up: "More than a tale of woe is required."

Wednesday, April 09, 2014

The Nitty-gritty of Federal Sentences, 2013 Edition

The United States Sentencing Commission has announced that the 2013 Annual Report and Sourcebook of Federal Sentencing Statistics are now available on the Commission’s website. The Annual Report provides an overview of major Commission activities and accomplishments in the last fiscal year. The Sourcebook presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2013.

Monday, April 07, 2014

Government Can Appeal District Court's Refusal to Set New Trial Date Following Remand

U.S. v. Bergman, 2014 WL 1259589 (3/28/14) (Col.) (Published) - The district court failed to proffer the requisite powerful justification for precluding the government from retrying Ms. Bergman after she prevailed in her § 2255 motion to vacate her conviction. Ms. Bergman had been represented by someone who turned out not to be a lawyer. By the time she won she had served her prison term and started her supervised release. The district court refused to set a date for a new trial. The 10th first decided 18 U.S.C. § 3731 gave the government the right to appeal the district court's decision. The lower court's refusal to set a trial date was the equivalent of a dismissal of the indictment, which is appealable under § 3731. With respect to the merits, some times habeas relief may include prohibition on retrial, for example, if: there was insufficient evidence; the constitutional speedy trial right was violated; the relevant statute was unconstitutional;, there was no jurisdiction; or retrial could not be fair even with the most competent counsel because so much evidence had been lost. But here the district court's relief was too attenuated from the right violated. The presumptively appropriate relief for an ineffective assistance claim is a new trial and the district court mentioned nothing that would overcome that presumption. Even if Ms. Bergman had completed her entire sentence, a retrial would be okay. There might very well be a due process prohibition against any more punishment, but the government could seek a conviction anyway.

Unpublished Decisions

U.S. v. Mitchell, 2014 WL 1151455 (3/24/14) (okl.) (unpub'd) - The 10th rejects a preindictment delay claim. The government indicted Mr. Mitchell for a bank robbery 9 days before the 5-year statute of limitations would have run. In the meantime Mr. Mitchell served state prison time for a drug store robbery, got out early due to exemplary behavior in prison, found a job, passed all his drug tests, began to repay court costs and began taking care of his mother who was suffering with stage 4 cancer. Despite what the 10th refers to as "this apparent reformation," the government insisted on its pound of flesh [in this case 21 months in prison]. Mr. Mitchell didn't show enough prejudice to warrant a finding of a due process violation, even though he was deprived of serving his state sentence concurrently due to the delay, because he only lost the opportunity to request concurrent sentencing. He was not entitled to concurrency and so the claimed prejudice was speculative. His prosecution was not presumptively vindictive retaliation for his assertion of his Miranda rights. The government only charged him with offenses he was guilty of. So no problem. On the helpful side, the 10th made clear a presumption of vindictiveness could arise in the pretrial context. It just hasn't seen it happen yet.

U.S. v. Webb, 2014 WL 1259600 (3/28/14) (Col.) (unpub'd) - The 10th implies substantive-reasonableness sentencing review shouldn't involve independent weighing of § 3553(a) factors by the court of appeals. While certainly the 10th is supposed to give deference to the district court's balancing, substantive-reasonableness review would be completely meaningless if the 10th couldn't say a district court gave an unreasonable amount of weight to a particular factor.

Attempted Interlocutory Appeal of Denial of Motion to Dismiss Indictment Refused

Calhoun v. Tucker, 2014 WL 930868 (3/11/14) (Okl.) (Published) - The 10th refuses to accept an interlocutory appeal of the denial of a motion to dismiss the indictment. The motion contended the indictment was obtained through the testimony of Mr. Calhoun who was testifying in reliance on the advice of an attorney who was paid by the victim of the fraud, a bank that would benefit from Mr. Calhoun's testimony. His self-incriminating testimony could get the bank off the hook for a civil judgment based on the fraud the bank participated in. The 10th finds that the appeal did not meet the requirement that the issue would be effectively unreviewable on appeal after judgment. The issue did not implicate the right to bail or the right not to be tried, such as a double-jeopardy right not to be tried twice, even though Mr. Calhoun's issue involved a remedy of dismissing the charges. It didn't matter that the rights involved were important or that success on appeal after judgment would be an imperfect remedy. A defect in the grand jury process is immediately appealable only if the grand jury ceased to be a grand jury, e.g. where there weren't enough votes for the indictment. If the 10th allowed this appeal the policy against piecemeal appeals would be riddled with exceptions. The 10th discusses a number of instances where it has allowed an interlocutory appeal. So the opinion provides a nice compendium of all the case law on the matter.

Restitution Cannot Be Modified Under Section 3563(c)

U.S. v. Wyss, 2014 WL 945169 (3/12/14) (Ut.) (Published) - The 10th reverses a lowering of Mr. Wyss's restitution amount 3 years after sentencing. Mr. Wyss, who hid from his full-time employer, TSA, that he was also working for Utah and so got paid for work he didn't do for TSA, moved to modify his restitution amount because it didn't reflect leave days he was entitled to. The district court granted the motion. But the 10th ruled that, although there are many conditions of probation that can be modified under 18 USC § 3563(c), restitution is not one of them. There are specific statutory provisions that lay out when restitution can be changed, e.g. when the victim recovers losses in a civil proceeding, and no provision to change just because the district court goofed originally. So the specific prevails over the general.

White-collar Defendant Obtains Remand for Resentencing on Acceptance, Loss Calculation

U.S. v. Evans, 2014 WL 929164 (3/11/14) (Col.) (Published) - A couple of wins for a white-collar guy. The government's refusal to move for a one-level USSG § 3E1.1(b) reduction was not rationally related to resource allocation and so Mr. Evans was entitled to the reduction. The government claimed Mr. Evans didn't truly accept responsibility because he contested the loss calculations, denying he was responsible for any losses to investors. But the government promised to move for the reduction and acknowledged in the plea agreement that Mr. Evans could challenge the loss amount. Mr. Evans had prevailed on most of his loss argument. Mr. Evans started off his real estate investment scheme on the up and up. But when cash flow problems arose he started lying about income, expenses, etc. to hide how bad things were going for the scheme. The district court was wrong to add up all the investor losses for the entire time of the scheme without regard for losses that had nothing to do with Mr. Evans' fraud. The court should have determined what loss the investors would have suffered if Mr. Evans had been truthful about the status of the securities and the underlying properties. The correct starting point was when the fraud began and the calculation should exclude lost value due to the unsustainable business model of the enterprise. The court also should have considered the effect and foreseeability of non-fraud factors, e.g. extrinsic forces such as the financial crisis. The 10th did reject Mr. Evans' claim that his infusion of 4.5 million dollars into the business should be subtracted from the loss amount. That money did not benefit the investors. It only helped to cover up the business losses.

Court Lacked Jurisdiction to Consider Denial of Motion for New Trial Where Notice of Appeal Filed Before Motion for New Trial

U.S. v. Battles, 2014 WL 929166 (3/11/14) (Okl.) (Published) - The 10th had no jurisdiction to consider the district court's denial of Ms. Battles' motion for new trial. Her notice of appeal did not refer to the denial because she had not even filed the motion yet. And her brief didn't serve as a notice because the district court hadn't denied her motion yet. She should have filed a new notice of appeal within 14 days of the denial. Ms. Battles could not meet the prejudice prong of the plain-error-reversal standard with respect to 404(b) evidence that she destroyed evidence. That 2-question piece of evidence was a small part of the 4-day trial that was never mentioned again and there was the limiting instruction, of course. There was sufficient evidence of wire fraud where Ms. Battles lied about her income to get a loan and fabricated a document to misrepresent what she did with the loan proceeds. It didn't matter that the jury acquitted her of a related count. Inconsistent verdicts are irrelevant. There was sufficient evidence of money laundering. The government didn't have to prove no untainted funds were deposited along with the unlawful proceeds. The evidence showed Ms. Battles wrote a $15,000 check to her mother two days after depositing over $100,000 of fraudulently obtained loan proceeds in her checking account, which previously had $100. The 10th declined to address ineffective-assistance of counsel claims where the record on the matter had not been sufficiently developed below.

Ms. Battles' statements during what the 10th refers to as a pretrial "Rule 11 interview" did not entitle her to an acceptance of responsibility adjustment. She only "admitted" that she was "here today for my recordkeeping." And at trial she challenged the factual element of intent. There was no reasonable likelihood of vindictiveness as the reason for the government not making a plea offer as it did for Ms. Battles' mom. It could decide plea bargaining would be a wasted effort. The 10th found it unlikely Ms. Battles was surprised at sentencing when the d. ct. imposed restitution for a particular bank. That bank had long before filed a foreclosure petition she had to have known about. And even if she was surprised, due process only requires that the results of the procedure "generally" yield accurate results. She received notice of the factual basis for the restitution in the PSR, albeit without notice of the particular victim she complained about. And she was able to present counter evidence at sentencing. There's no right to confrontation at sentencing. So Ms. Battles had no right to impeach sentencing hearing testimony. Subtracting the sales price of the home from the outstanding balance on the loan was the right way to calculate restitution.

Officers Who Brutally Subdued Detainee Who Died Not Entitled to Qualified Immunity in Civil Rights Suit

Estate of Booker v. Gomez, 2014 WL 929157 (3/11/14) (Col.) (Published) - Officers were not entitled to qualified immunity in the following circumstances: to place Mr. Booker in an intake/isolation cell after arresting him, an officer grabbed him from behind. Mr. Booker swung his elbow nearly striking the officer's head; a number of officers took him to the ground where he laid on his stomach; one officer used a "carotid restraint," which diminishes the supply of oxygenated blood to the brain and which training materials warned could cause brain damage if used for more than a minute [it was used for 2 1/2 minutes]; meanwhile another officer used a "gooseneck hold," a pain compliance technique, bringing Mr. Booker's hand behind his back; that officer handcuffed Mr. Booker and put a knee on his back applying 75 % of the officer's body weight of 190 pounds; another officer used nunchakus, a pain compliance device, securing it to Mr. Booker's ankle; then yet another officer tasered Mr. Booker's leg in "drive stun mode" for 8 seconds, 3 seconds longer than is standard; It was only after all that, 2 minutes, 55 seconds after the initial officer grab, that the carotid restraint and the nunchakus were released; Mr. Booker didn't resist. A video showed he was motionless while the officers subdued him. Officers carried Mr. Booker to a cell; they did not check to see if he needed medical attention; a minute and a half later an officer asked a nurse to examine Mr. Booker; almost 5 minutes elapsed from carrying Mr. Booker to his cell until a nurse arrived; needless to say Mr. Booker had died by then; he died from "cardiorespiratory arrest during physical restraint." The medical examiner determined that all the various methods used on Mr. Booker contributed to his death.

The 14th Amendment, not the 4th, applied. The 4th governs unreasonable seizures, the 14th, treatment of a detainee after a lawful seizure pursuant to probable cause. It was okay for the d. ct. to analyze the officers' actions in the aggregate,rather than individually since it was a group effort and the officers not only had a duty not to use excessive force, but also to intervene when they witnessed other officers using excessive force. Looking at the evidence in the light most favorable to the plaintiff, the officers used excessive force. The plaintiff didn't have to show a motive amounting to excessive zeal amounting to official abuse of power since disproportional force and serious injury were present. And there was deliberate indifference with respect to getting Mr. Booker medical attention. There was sufficient evidence the delay in getting medical help contributed to Mr. Booker's death. The officers [or at least their lawyers] had the gall to suggest they couldn't be liable on that theory because they didn't check Mr. Booker's vital signs. The 10th says the officers were in a position to know of Mr. Booker's physical deterioration, since they caused it and because of his "limp" appearance.

And of some interest for our cases, the 10th refuses to seal documents even though they were filed under seal in district court. The defendants had the burden to show some significant interest outweighed the presumption in favor of records being open to the public. The defendants proffered no reason other than the sealing in district court.

Counsel's Unpreparedness Did Not Force Defendant to Represent Himself at Trial, Divided Court Holds

U.S. v. Behrens, 2014 WL 929186 (3/11/14) (Wyo.) (unpub'd) - A divided 10th rules that Mr. Behrens was not forced to go pro se due to his attorney's unpreparedness. On the opening day of trial counsel asked for a continuance saying "there are things I would like to do in this case that I haven't done." While some of the things to do were interviewing witnesses he wouldn't have interviewed if his client hadn't wanted him to, there was one witness the attorney said he wanted to interview in his own professional judgment that he would contact during trial. The 10th finds the attorney was not incapable of rendering effective assistance. Counsel had an opportunity to contact the one witness, albeit at the last minute. But, the 10th says, "it's not unheard of to contact witnesses during trial." [It happens all the time on TV]. Also reasonable suspicion continued to justify detaining Mr. Behrens even after the officer saw a temporary registration tag on Mr. Behren's car. The officer thought it might be fake because it had faded, [as it was designed to do] except for the expiration date that was written in bold marker.

Judge Ebel dissented from the counsel ruling. The failure of counsel to contact a crucial defense witness before trial, no matter how much else counsel may have done, coerced Mr. Behrens into representing himself. Judge Ebel pointed out the district court never said in front of Mr. Behrens that counsel was prepared, only that counsel should have been prepared. There was no strategic reason for counsel to have failed to contact the potential defense witness. Judge Ebel didn't think having the opportunity to contact the witness during trial was enough to render counsel's representation effective.

Defense Statements Invited Error

U.S. v. Yazzie, 2014 WL 960899 (3/13/14) (N. M.) (unpub'd) - The 10th refuses to consider whether the district court correctly determined the mandatory minimum was 35 years because defense counsel invited the error by repeatedly stating the mandatory minimum was 35 years. The word to the wise warning is that one of the statements the 10th relied on was not in the expected sentencing pleading, but in a response to a pretrial motion in limine. Defense attorneys have to watch what they say all the time.

Sex Offender Registration Requirements Are Not "Custody" for Habeas Purposes

Calhoun v. Attorney General of the State of Colorado, 2014 WL 1015919 (3/18/14) (Col.) (Published) - Mr. Calhoun was not in custody for habeas purposes by virtue of the fact that, because of the conviction he challenged, he had to register as a sex offender. The registration requirement did not constitute a severe enough restraint on his liberty to amount to custody. It wasn't enough that he could be incarcerated if he didn't register. And, as we all know, registration requirements are remedial, not punitive.

Government's Elicitation of Arguably Improper Character Evidence Is Not Plain Error Warranting Reversal

U.S. v. Perryman, 2014 WL 945151 (3/12/14) (Okl.) (unpub'd) - The 10th was "troubled" and "perplexed" by the government's eliciting testimony from several witnesses that Mr. Perryman was a cruel and unethical boss and a wife-abuser. And it was "disappointed that an officer of the court would choose to emphasize the testimony in closing." While the rationale the government gave that it was drawing out potential biases preemptively might explain testimony that the witnesses hated Mr. Perryman, it wasn't likely the defense would have brought up the rest of the testimony. Nor did it explain the prosecutor's closing urging the jury to consider what a bad person Mr. Perrryman was. You might have guessed by now, though, that a reversal does not follow. Assuming all this might have been plain error, Mr. Perryman did not show under the plain-error-reversal standard a reasonable probability the verdict would have been different given the strength of the government's arson case: Mr. Perryman was facing financial problems;insurance would have satisfied Mr. Perryman's debts; he removed keepsakes from the club shortly before the fire and arranged for the tenant in the building to stay elsewhere on the night of the fire; and he was the last known person in the club before the fire.

Grant of New Trial Reversed Despite Government's Suppression of Brady Evidence Regarding One Witness

U.S. v. Reese, 2014 WL 1042781 (3/19/14) (N.M.) (Published) - The 10th reverses the grant of a new trial in a highly publicized firearms case in Southwest New Mexico. The 10th finds the suppressed evidence that the FBI was investigating Deputy Batts for involvement in various undescribed criminal activities was not helpful enough to warrant relief under Brady. The defense argued the investigation gave Batts an incentive to testify helpfully for the government. The 10th ruled Batts was not an important enough witness for it to matter if he were thoroughly impeached. The evidence was strong that the defendants knew the people they sold the firearms to were not the real buyers, but just straw purchasers. In the video-recorded incidents the cooperating witness picked out, ordered and paid for the guns, while an undercover agent signed the papers as though the agent was the buyer, often with help from the defendants. Batts had nothing to do with any of those events. He was critical to establishing how the investigation began, but not regarding the central issue of whether the defendants knew the agents were just straw purchasers. Batts played a minor role in the government's closings. That the jury acquitted on 24 of 28 counts did not show this was a close case regarding the particular straw-buyer convictions. The evidence was much stronger, given the video for the convicted counts and proof problems with the other counts. The 10th also made clear that review of a Brady decision by a district court is de novo, even though there's one outlier 10th Circuit case that says otherwise. Earlier precedent prevails. And the 10th observed that the level of government culpability does not matter under Brady. It only matters if it gets to the point of the government knowingly using perjurious testimony under Napue.

Court rejects Batson challenge; "childless and young" was a legitimate nondiscriminatory reason to excuse juror

U.S. v. Ganadegro, 2014 WL 1045026 (3/19/14) (N.M.) unpub'd) - In rejecting a Batson claim, the disctric court said the following: "I think the prosecutor has stated a legitimate nondiscriminatory reason [the juror was childless and young in a child abuse resulting in death case] for exercising her peremptory challenge [against a Native-American]. . . So, I'm not sure I can deny the challenge just because she's trying to maneuver or come up with a better racial composition. . . . So I'll overrule the challenge." The 10th ruled the judge did not mean the prosecutor was "trying to maneuver or come up with a better racial composition," when he said that. Rather the statement was ambiguous and read in context only meant that he couldn't grant relief just because Mr. Ganadonegro asserted the prosecutor was striking a juror for racial reasons. Understood this way, the 10th says, the judge was really just making a credibility determination. Once the 10th says it's a credibility judgment, they can't reverse it. And, besides, the 10th says, to interpret what the judge said the way Mr. Ganadonegro does would mean the judge didn't understand Batson. And that couldn't be true. On the helpful side the 10th indicates the defense can make a prima facie Batson case by inference, such as perhaps here where the juror had lots of Navajo connections, even though he didn't acknowledge he was Native American when the group was asked. The 10th also thought the government's opposition to excusing for cause another non-Native-American juror who was childless and young was not persuasive evidence of bias because that juror leaned towards becoming a police officer. So the government had a strategic interest in keeping that juror. Plus the juror indicated he could serve despite his school obligations.

It was not improper to question Mr. Ganadonegro repeatedly about not using an interpreter much at a prior trial, but using the interpreter a lot at this trial, because the defense relied heavily on Mr. Ganadonegro's lack of English proficiency. It was not "relentless" and "badgering," as the defense claimed, but rather just right.

10th Reinstates Prisoner's Civil Rights Complaint Alleging Denial of Ability of Practice Religion

Tennyson v. Carpenter, 2014 WL 1015908 (3/18/14) (Col.) (unpub'd) - The 10th reverses a district court's dismissal of the prisoner's § 1983 complaint. Mr. Tennyson kept binders of choir music in his cell. He was part of the prison choir called the "Praise Team." Singing in the choir was Mr. Tennyson's "response to the dictates of God." A policy change prohibited choir members from keeping their binders in their cells. Guards confiscated the binders and removed most of Mr. Tennyson's personal photos from the binders. Later he noticed a photo of his daughter graduating was missing. An officer refused to double-check for the photo. Mr. Tennyson filed a grievance to retrieve the photo. The response was that any missing photo was due to his misconduct in misusing the chaplain-issued binders for a non-choir purpose. Shortly after the grieving, the chaplain was directed to kick Mr. Tennyson off the choir for misusing the binders. Later the missing photo was anonymously left in Mr. Tennyson's cell. The denial of choir denied Mr. Tennyson the ability to practice his religion. It was not for the court to say whether choiring is a way to practice religion, if Mr. Tennyson believed it was. Mr. Tennyson made a case for retaliation for him filing a grievance. He also sufficiently alleged an equal protection violation because he was the only African-American in the choir and the only member disciplined for what he said other choir members had done.

404(b) evidence properly admitted; district court did not abuse discretion in refusing to sever defendants' trials

U.S. v. Shaw, 2014 WL 1047040 (3/19/14) (Col.) (unpub'd) - In this aggravated sexual abuse case, FRE 404(b) evidence of other sexual assaults and threats were admissible to show a common scheme or plan to get fellow inmates to pay for protection or be subjected to sexual abuse. It was not an abuse of discretion to refuse to sever the defendants even though some of the 404(b) evidence was not admissible against all the defendants. The 10th didn't think having less 404(b) evidence would have made a difference in the outcome of the severed trials. And, of course, there were limiting instructions to protect the defendants in the joint trial.

Monday, March 24, 2014

Tax Protester's Jury Instruction Arguments Rejected; Convictions for Filing False Liens Affirmed

U.S. v. Williamson, -- F.3d --, 2014 WL 998409 (10th Cir. 3/17/14) - The Tenth affirms convictions of a longtime tax protester who was convicted of offenses resulting from his filing of liens against the real and personal property of two IRS agents. First, the court concludes that Mr. Williamson failed to preserve his argument that the jury instructions did not impose the proper mens rea requirement by arguing in the district court that the jury should be instructed that in order to find he acted unlawfully, it must find he intentionally violated a known legal duty. The Tenth decides that it was not plain error to fail to instruct the jury that in order to convict Mr. Williamson of endeavoring to impede the administration of the tax code by filing a false and fraudulent lien claim under 26 U.S.C. § 7212(a), it must find that he knew that he was acting unlawfully. Second, it concludes that Mr. Williamson was not entitled to a good-faith instruction with respect to the offense of filing a false lien on account of performance of official duties under 18 U.S.C. § 1521 because that would be inconsistent with the statutory language that the violator need only have reason to know the lien was false.

Friday, March 14, 2014

Habeas Petitioner Gets Remand for Evidentiary Hearing on IAC Claim

Milton v. Miller, 2014 WL 892890 (3/7/14) (Okl.) (Published) - A habeas petitioner gets a remand for an evidentiary hearing on an ineffective assistance (IA) of counsel claim regarding plea bargaining. The petitioner asserted that his appellate counsel should have raised trial counsel's incompetence for failing to tell him about a plea deal for 23 or 25 years when he ended up going to trial and getting a couple of life sentences, one of them without parole. At a pretrial hearing the judge mentioned that Mr. Milton had been offered a 23-year sentence prior to the preliminary hearing and had turned it down. Mr. Milton told his lawyer, who was different from the preliminary hearing lawyer, that he never heard about that offer. The prosecutor had notes which corroborated that an offer of 25 years had been made. The defense lawyer mentioned that to the judge who said: "well, that's water under the bridge now because the offer is now 40 years," which Mr. Milton didn't accept. In post-conviction proceedings, the state filed an affidavit from the preliminary-hearing lawyer who insisted he had communicated the offer and Mr. Milton had rejected it.
The Oklahoma Court of Criminal Appeals (OCCA) applied the wrong appellate IA standard, saying failing to recognize an issue regardless of merit is not enough to obtain relief. The 10th held that standard was contrary to clearly established Supreme Court law. No test that ignores the merits of an omitted claim comports with federal law. Because the OCCA screwed up, de novo review, rather than stringent AEDPA deference, applied. This was true with respect to the OCCA's ruling regarding the prejudice prong because it was tainted by its performance prong error. The federal d. ct. had rejected Mr. Milton's claim based on the lawyer's affidavit. The 10th rules that Mr. Milton met the performance prong because there was clear state law saying defense lawyers must communicate plea offers to their clients. So appellate counsel should have raised that issue in light of the record indicating Mr. Milton didn't hear about the offer. As for the prejudice prong, it was wrong for the d. ct. to simply accept the lawyer's word. There was a dispute of fact that had to be resolved at an evidentiary hearing. If Mr. Milton was believed, he would be entitled to relief because he alleged he would have accepted the offer had he heard about it and so would have prevailed on appeal after an evidentiary hearing in state court. The 10th holds Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which requires federal habeas courts to only look at evidence before the state courts, does not apply here. Mr. Milton sought evidentiary hearings in state court but was denied based on reasoning that was contrary to S. Ct. law. So the d. ct. could consider new evidence.

Forging Another Person's Signature Violates Aggravated Identity Theft Statute

U.S. v. Porter, 2014 WL 868791 (3/6/14) (N.M.) (Published) - Under the aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), a means of identification includes a person's signature. So when Ms. Porter forged the signature of the union's president on a financial report she violated that statute. The definition of "means of identification" in § 1028(d)(7) includes "any name." For "any" to have any meaning it must refer to a signature. In the course of justifying its interpretation the 10th goes through a number of statutory construction rules: every word must have meaning; negative implication from the lack of the word "signature"; "including" means the list is not exhaustive; specific provisions govern over general ones.
The 10th uses Ms. Porter's own testimony to establish the mailing element for mail fraud. She testified the routine practice was to submit the reports by mail. Even if she passed the report on to someone else before it was mailed, it was enough to convict her that she caused the report to be mailed. There was sufficient evidence of wire fraud with respect to unauthorized purchases by Ms. Porter. While the government witness only testified specifically about some of the purchases being unauthorized she also testified she looked at all the purchases referred to in the indictment to determine if they were unauthorized and spoke generally of their unauthorized nature. And the witness's testimony indicated that she erred on the side of labeling a purchase authorized if there was an ambiguity. The jury could take note of the witness's conservative approach. Plus Ms. Porter used a debit card to purchase things when that was prohibited by the union and she falsified bank statements. Ms. Porter waived review of the sufficiency of the evidence for certain counts because she did not offer specific arguments or citations to the law or the record with respect to those counts.

Unpublished Decisions

U.S. v. Bustamonte-Conchas, 2014 WL 892888 (3/7/14) (N.M.) (unpub'd) - A nice pretrial release win for Mr. Bustamonte-Conchas represented by Erlinda Johnson. The decision recites some helpful principles. Mr. Bustamonte was charged with distribution of 100 grams or more of heroin, triggering the presumption in favor of detention. Judge Parker ordered his release to a halfway house with several conditions, including being kept on lockdown, tracking by GPS, a cell-phone-access prohibition and limited landline access for calls only with his attorney. In Mr. Bustamonte's favor were the facts that he had no criminal history, in 2012 he had obtained permanent resident status which required careful vetting, he is married to a U.S. citizen, there was no evidence he used illegal drugs, he earned about $5,000 a month in a car business, there was no violence involved in his alleged offense, there was only circumstantial evidence indicating his guilt and, critically, the probation office recommended release to the halfway house. On the down side Mr. Bustamonte was allegedly the leader of the heroin enterprise, and he had ties to Mexico where his adult kids lived and where he had traveled frequently. The judge found that the government had proven Mr. Bustamonte was a flight risk and a danger, but found that the stringent conditions would be enough to prevent any problems. The 10th agreed with the judge that Mr. Bustamonte had overcome the presumption by virtue of his lack of criminal history, permanent resident status and ties to the U.S. The 10th noted that, despite the presumption, the burden of persuasion stays with the government and noted in a parenthetical that a defendant's burden of production to overcome the presumption was not heavy. In response to the government's worries that Mr. Bustamonte would continue his criminal enterprise by borrowing the cell phones of other inmates, the 10th found there was no evidence the halfway house was inadequately staffed to make sure Mr. Bustamonte followed the restrictions on phone access and observed that the landline phone was monitored. In response to the government's concern that Mr. Bustamonte could escape, given the lack of armed security, how easy it is to cut off the GPS device and the fact that 5 residents had absconded in the last year, the 10th noted authorities would be immediately notified if the monitor was cut off, and the government did not show any of the absconders were subject to conditions as restrictive as Mr. Bustamonte would be subject to. The 10th stressed the government had the burden to show the conditions were not sufficient. In a footnote the 10th complained about the lack of testimony, since all evidence was presented by proffer. Judge Hartz concurred, stressing that he had to defer to the judge's fact-finding and the judge credited the expert opinion of Pretrial Services regarding the adequacy of halfway house conditions.

U.S. v. Dang, 2014 WL 804009 (3/3/14) (an.) (unpub'd) - A cautionary tale for clients to refrain from bringing money to sentencing. After sentencing and a remand of the previously-released Mr. Dang to the Marshals' custody, the marshals directed Mr. Dang to give his personal belongings to his wife or attorney. Mr. Dang placed $1,472 in cash on the counsel table. Counsel reached for it, but a deputy marshal directed counsel not to touch it and confiscated it. The judge ordered that the money remain with the marshals. Subsequently the government sought an order that the money be used as partial payment of restitution ordered in a prior case. The 10th held it didn't matter whether the deputy violated Mr. Dang's 4th Amendment rights. It's a distinct issue from the appropriate disposition of the seized cash. A restitution order creates a lien against a defendant's property that can be enforced against property in the government's possession. Mr. Dang might have some other remedy, such as a Bivens action. As for substantive and procedural objections to the application of the funds to the restitution obligation, Mr. Dang didn't raise those issues. So the 10th explicitly didn't address them.

U.S. v. Pettit, 2014 WL 804012 (3/3/14) (Okl.) (unpub'd) - Mr. Pettit could be guilty of conspiracy even if he offered to provide meth selflessly for no profit or just to help out his nephew. A DEA agent's testimony that he administered Miranda warnings to Mr. Pettit in the probation and parole office was harmless. The d. ct. thought the jury didn't really notice that bad fact and didn't want to give a curative instruction because it would only highlight the fact. It was just an isolated incident in a sea of ample evidence of guilt.

U.S. v. Norwood, 2014 WL 889615 (3/7/14) (Okl.) (unpub'd) - The S. Ct. case that authorized consideration of IA claims regarding post-conviction counsel under certain circumstances, Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not entitle a defendant to appointment of counsel in a § 2255 proceeding.

Monday, March 10, 2014

New Sentencing Ordered for Defendant Who Objected to Drug Quantity Calculation

U.S. v. Harrison, 2014 WL 702119 (2/28/14) (Okl.) (Published) - The 10th Circuit reverses a drug quantity calculation. Trial counsel failed to object at sentencing, but Ms. Harrison herself objected to the PSR's quantity determination. Ordinarily this would not preserve the issue when a defendant is nominally represented by counsel, but here the district court addressed the objection raised pro se. It was enough that Ms. Harrison said she disagreed with the calculation. The issue was preserved. The district court's response was that the PSR's calculation was based on trial testimony. But, actually, it was not. Nothing at trial supported the PSR's rationale for its calculation. So the district court clearly erred by finding to the contrary, even if the trial testimony did actually support the calculation. And the error was not harmless because some of the trial evidence, even if believed, proved little regarding amounts and other evidence establishing amounts may not have been credited by the district court or the district court may not have extrapolated the way the government suggested the extrapolation should be done. It would take too much speculation to conclude the district court would have come to the same quantity determination if it had actually examined the trial testimony. Sentence vacated.

Unpublished Decisions

U.S. v. Lake, 2014 WL 715809 (2/26/14) (Okl.) (unpub'd) - This case involves the son of the defendant in the prior Lake case where the 10th Circuit accepted the government's concession that increasing the guideline range based on a judicial finding of fact violated the Sixth Amendment as interpreted in the S. Ct's Alleyne decision. In this case the son raised the same issue, but now the government believes it was wrong to make the concession it made in the father's case. This panel, which is different from the one in the father's case, refuses to decide whether the other panel was wrong. Instead it applies the law of the case, which applies to co-defendants. To disregard the law of the case the prior decision must be manifestly erroneous and manifestly unjust. The 10th Circuit says that, even if the prior decision was manifestly erroneous [which it unfortunately was], it was not manifestly unjust. So Mr. Lake Jr. gets another sentencing.

U.S. v. James, 2014 WL 762694 (2/27/14) (Col.) (unpub'd) - In this mortgage scam case the 10th Circuit previously remanded for the district court to make loss findings regarding 10 mortgagers. In the end the district court ended up only finding losses with respect to 6 mortgagers. Mr. James argued the district court should have eliminated the enhancement for 10 or more victims. But the 10th, while saying its rules about what a district court can address on remand are more expansive than some circuits, holds that the prior mandate only allowed the district court to address the loss issue. So tough luck on the victim enhancement issue. The 10th Circuit affirms the district court's loss findings, which the 10th Circuit holds were based on the mortgagers' best estimate of their actual losses pursuant to accurate instructions. In the last paragraph the 10th Circuit complains that Mr. James benefited from a "ridiculously small" restitution order and concludes: "The result here may not be ultimately fair, but any unfairness was visited on others, not James."

U.S. v. Sim, 2014 WL 783139 (2/28/14) (Col.) (unpub'd) - The 10th Circuit refuses to find the district court applied the guidelines in mandatory fashion even though the district court said: "The defendant argues this court should exercise discretion considering that the guidelines are advisory. It's still not clear to this court what that actually means because the few times I've tried to read more flexibility into the guidelines I've been reversed by the 10th Circuit." At another point during the sentencing hearing the district court acknowledged the guidelines were advisory and that was enough to absolve the district court for its problematic remarks.

It was not unreasonable to impose a sentence at the high end of the guideline range where Mr. Sim robbed two banks on the day he was released from prison after having been sent to prison for committing a bank robbery.

Green v. Hininger, 2014 WL 685382 (2/24/14) (Okl.) (unpub'd) - The prisoner did not allege facts that entitled him to relief under § 1983 where he alleged: before lancing a boil on his back the doctor described a movie where the warden allowed prison officials to torture inmates whom the administration disliked; the prisoner believed the doctor disliked him; the doctor told the prisoner the doctor would not use an anesthetic; the prisoner started to "reject the procedure"; the doctor went ahead and lanced the boil; the prisoner screamed in terrible pain; the doctor didn't care and continued with the procedure, while an observing guard laughed the entire time. This was not deliberate indifference to the prisoner's medical needs. Medical care was provided. The prisoner was just disagreeing with a medical decision, which cannot be a ground for relief.

Wednesday, March 05, 2014

No 4th Amendment Violation When Cops Found Gun After Dragging Defendant from Parked Car

U.S. v. Mosley, -- F.3d --, 2014 WL 804005 (3/3/14)(Kan.) - Defendant passenger had standing to contest seizure of gun found in vehicle that was a fruit of the passenger's seizure. Passenger was not seized in violation of the Fourth Amendment where officers had an anonymous tip that an occupant of the car in which defendant was sitting was holding a gun in his lap, officers approached the car with weapons raised and yelling, "hands up," and defendant responded by making furtive movements suggestive of hiding or retrieving a gun before putting his hands up. Defendant was not actually seized until he complied with officers' orders by putting his hands up and by then, they had reasonable suspicion justifying a Terry stop. In addition to the furtive gestures after the confrontation by police and the anonymous tip about the gun, the stop occurred at 3 am in a crime prone area. Officers were justified in ordering the defendant out of the car and his failure to comply gave them probable cause to arrest him for the state offense of interfering with law enforcement.

Regs Requiring Compliance with Federal Officers on Federal Property Can Be Enforced With Criminal Sanctions

U.S. v. Baldwin, 2014 WL 594036 (2/18/14) (Col.) (Published) - The 10th affirms convictions based on regulations requiring compliance with lawful directions of federal police officers on federal property and prohibiting impeding government employees' duties on federal property. In this case a commander of the Federal Protective Service stopped Mr. Baldwin on Denver Federal Center grounds to warn him about speeding. Mr. Baldwin stopped and then drove off despite commands to stop. Later he was stopped on the public streets where he refused to provide documents and was forced from his truck and handcuffed. The 10th holds the regulations did not just express policy but also could be enforced with criminal sanctions. Congress authorized regulations by the Department of Homeland Security that prescribe criminal penalties up to 30 days in prison and fines. See 40 U.S.C. § 1315(c). While the 10th suggests there might be separation of powers and Congressional delegation issues, Mr. Baldwin did not raise those. As for Mr. Baldwin's challenges, the 10th held the regulations were not too vague as applied to him, although they might be, the 10th suggests, if applied to someone who engages a federal employee in a conversation about ski conditions in the high country, which "might make criminals of us all". Even though the regulations don't mention a mens rea requirement, they probably have one and the trial court required that Mr. Baldwin "knowingly" fail to comply and impede. There was sufficient evidence Mr. Baldwin knew he was disobeying orders even though he testified he didn't hear the commands. Government witness testimony contradicted Mr. Baldwin. It was not plainly wrong to convict him even though there was no evidence the required notice of the regulations was posted. Courts were divided on the issue. And there was sufficient evidence Mr. Baldwin used his truck as an "obstacle" under Colorado law so that he was guilty of the Colorado offense of obstructing a peace officer and prosecutable under the Assimilated Crimes Act.

Unpublished Decisions

U.S. v. Velarde, 2014 WL 661422 (2/21/14) (Wyo.) (unpub'd) - The 10th reverses a meth defendant's pre-sentence release. There was no likelihood of acquittal or a new trial or a government recommendation of a non-prison sentence to justify release under 18 U.S.C. § 3143(a)(2). And there was no "exceptional" reason under § 3145(c) warranting release. That Mr. Velarde had "a few matters to take care of" was not enough. "Mere personal reasons," such as family hardships, are not exceptional.

Barnett v. Franklin, 2014 WL 642840 (2/20/14) (Okl.) (unpub'd) - A favorable procedural ruling only a habeasphile could love. No AEDPA deference applied to the Oklahoma Court of Criminal Appeals ("OCCA") ineffective-assistance-of-counsel decision where the lower court rejected the petitioner's claims on procedural grounds and on the merits, but the OCCA only denied the claims for procedural reasons. Federal courts must look to the last reasoned decision, which was the OCCA's decision. The OCCA's procedural ruling was apparently wrong. So no procedural default in federal court. And there was no merits decision to defer to. But the petitioner loses on the merits despite the lack of deference.

Unpublished Decisions

U.S. v. Deppish, 2014 WL 521262 (2/11/14) (Kan.) (unpub'd) - The 10th affirms the curfew and electronic-monitoring pretrial conditions of a child porn defendant. Rather than decide whether it was okay for 18 U.S.C. § 3142(c)(a) to mandate those conditions in all cases, the 10th decided it was okay to impose them in this case, given that Mr. Deppish was alleged to have posted sexually suggestive photos of a minor family member on the internet. The conditions removed the opportunities for undetected prohibited contact with minors. Even if one factor that was required to be considered, in this case Mr. Deppish's history and characteristics, argued against the conditions, other factors clearly outweighed that factor.

U.S. v. Chaidez, 2014 WL 553584 (2/13/14) (Okl.) (unpub'd) - The government conceded the district court committed plain error when it imposed a 4-year supervised release term under the mistaken impression that it was the mandatory minimum. Since Mr. Chaidez qualified for the safety valve, he was subject to the guideline range of 2 to 5 years supervised release. But the 10th says Mr. Chaidez did not prove it was reasonably probable the district court would have imposed a lesser term had the court known it could do so. .The district court's downward variance and imposition of a sentence at the lowest end of the reduced range did not convince the 10th otherwise. The 10th found no indication in the transcript that the district court would change its sentence, which the 10th admitted was probably because the district court didn't know it had a choice. The 4th plain-error prong (fairness-integrity- public-reputation) was not met, not only because Mr. Chaidez didn't show the sentence would have been different but also because the 10th doesn't feel being on supervised release is that big a deal and it would cause the government a lot of money to transport Mr. Chaidez for resentencing. And, besides, all of this could have been avoided if counsel would have just timely objected.

U.S. v. Saavedra-Villasenor, 2014 WL 542016 (2/12/14) (N.M.) (unpub'd) - For supervised release revocation sentencing purposes, Mr. Saavedra's violation of 8 U.S.C. § 1325 in another district constituted a Grade B violation since it was "punishable" by up to two years, given his prior violation of § 1325, It didn't matter that he was only sentenced to a year for his most recent § 1325 offense. The grade is based on the actual conduct not the actual sentence imposed.

U.S. v. Williams, 2014 WL 503545 (2/10/14) (Okl.) (unpub'd) - The district court's imposition of supervised release conditions prohibiting Mr. Williams from possessing pornography and entering strip clubs and requiring him to submit to reasonable searches were sufficiently related to keeping him from becoming a pimp, the offense for which he had been convicted.

U.S. v. Johnson, 2014 WL 542061 (2/13/14) (Kan.) (unpub'd) - The 10th affirms an upward variance from 70-87 months to 147 months for traveling to promote unlawful activity and felon-in-possession. It was not plain error to refer to Mr. Johnson's children as "illegitimate" when explaining the variance. The district court's focus was on Mr. Johnson's failure to pay support for his children, not on the parents' failure to marry. It was okay to vary upward for the support-failure as well as for Mr. Johnson's long-term unemployment, the increasing seriousness of his crimes and the failure of prior punishments to deter him.

Thiam v. Holder, 2014 WL 503472 (2/10/14) (unpub'd) - The Board of Immigration Appeals failed to adequately consider whether it was reasonable for Mr. Thiam in particular to relocate in Senegal to avoid persecution for political reasons, given evidence that Mr. Thiam had no family in the part of Senegal the Board of Immigration Appeals suggested he could go.

He v. Holder, 2014 WL 521409 (2/11/14) (unpub'd) - The Chinese government detaining Ms. He for one week, interrogating her twice, beating her, resulting in minor injuries, and prohibiting her from attending an underground church was not egregious enough to amount to persecution so as to justify asylum or restriction on removal.

U.S. v. Rayford, 2014 WL 503477 (2/10/14) (Kan.) (unpub'd) - Counsel did not act unreasonably when counsel failed to challenge the use of GPS devices. It was not reasonable to expect counsel to anticipate the United States Supreme Court would decide the way it subsequently did in Jones. The courts were divided on the issue at the time counsel was representing Mr. Rayford.