Report Documents Increased Federal Prosecution; Arrests High in Border Districts

A press release from the Dept. of Justice, Bureau of Justice Statistics announced the release of a new report on arrests and prosecutions in the criminal justice system. It begins as follows:

FEDERAL IMMIGRATION ARRESTS SURPASS DRUG ARRESTS
Post-arrest, drug and weapons offenders most likely to be prosecuted and convicted
     WASHINGTON -- Immigration and drug arrests comprised more than half of the 140,200 federal suspects arrested and booked by the U.S. Marshals in 2005, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. Material witness (20 percent), immigration (15 percent) and weapons (11 percent) arrests increased at the fastest annual rate from 1995 to 2005. In 2005, immigration (27 percent) was the most prevalent arrest offense followed by drug (24 percent) and supervision violations (17 percent).
     Forty percent of all suspects arrested by the U.S. Marshals Service were arrested in 1 of 5 federal judicial districts along the U.S.-Mexico border, including Arizona, New Mexico, the Southern and Western Districts of Texas, and the Southern District of California. Nearly 1 in 4 (23 percent) of all suspects arrested in 2005 were arrested in the Southern and Western Districts of Texas.
The full release is available at
http://www.ojp.usdoj.gov/bjs/pub/press/fjs05pr.htm

The report is available at
http://www.ojp.usdoj.gov/bjs/abstract/fjs05.htm

Possession of Child Porn Conviction Affirmed

U.S. v Schene, -- F.3d --, 2008 WL 4379509 (10th Cir. 9/29/08) - There was sufficient evidence that materials transported in interstate commerce were used to download porn images to the hard drive of Schene's computer to support his conviction of knowingly possessing child porn. Schene did not challenge sufficiency of the evidence at trial on this ground and any error did not violate his substantial rights or seriously affect the fairness of judicial proceedings. Also, there was sufficient proof that it was Schene, not his wife, who knowingly possessed the child porn.

The district court did not abuse its discretion in admission of evidence. Testimony that women don't generally look at or traffic in child porn did not need to have scientific basis established because it was admitted to explain that the agent acted in accord with his training by focusing on Schene and not his wife. Alleged prosecutorial misconduct in presenting evidence of Schene's visiting of gay websites was not flagrant enough to improperly influence the jury. It was OK for gov't to show porn images at trial, despite Schene's stipulation that they constituted child porn, because the gov't was entitled to prove its case and the images were not unfairly prejudicial.

Unpublished Decisions

U.S. v. Griffin, 2008 WL 4330388 (9/23/08) (unpub'd) - In this case, the 10th holds that the defendant waived, [not forfeited, which would allow for plain error review] his right to challenge on appeal absent-witness statements at a revocation hearing because when the court asked whether the defense objected to their admission the defense said "no." This was "not an inadvertent failure to object but an explicit and deliberate disavowal of an objection." So trial lawyers now really have to think carefully about whether they want to indicate their lack of objection.

U.S. v. Pereira-Rico, 2008 WL 4356255 (9/25/08) (unpub'd) - The 10th reviews a sentence for substantive unreasonableness, even though the defendant called his request for a below-guideline-range sentence a downward departure, not variance,motion. It was enough that he raised grounds linked to the reasonableness of the sentence under § 3553(a). The 10th then upheld the within-guideline-range sentence.

Martinez v. Martinez, 2008 WL 4332539 (9/24/08) (unpub'd) - The district court abused its discretion when it dismissed a § 1983 action for lack of prosecution without mentioning the plaintiff's letter received 5 days before the dismissal. In the letter, the plaintiff explained he didn't timely respond to the magistrate's orders because he had not received the orders and not provided a new address due to his arrest and placement in segregation during the relevant times. It didn't seem likely the plaintiff had abandoned his case when he had been a very active litigant before his arrest. So, any waiver attributed to a failure to timely object to the magistrate's decision was overcome on fundamental-miscarriage-of-justice grounds.

Watkins v. Leyba, 2008 WL 4335466 (9/24/08) (unpub'd) - On the other hand, this habeas petitioner's appeal is dismissed on the grounds that his notice of appeal was untimely. The petitioner had not received the order denying his petition because he had moved. After the order was issued and before his time would have run out, he sent a change of address and asked for the status of his case. The clerk did not respond. The clerk did respond to a second letter but by then it was too late.

Comments Requested on Proposed Changes to Tenth Circuit Rules

Effective January 1, 2009, the Tenth Circuit will amend its local rules. Here is a link to a memo regarding the proposed rules changes, as well as redlined and non-redlined versions of the proposed amendments. The Clerk invites interested parties to submit comments on the proposed changes to the Clerk of Court. The comment period will extend through the close of business on Monday, October 27, 2008. Comments may be submitted in writing to the Clerk's office care of 1823 Stout Street, Denver, Colorado, 80257, or via email at the Court's website.

Upcoming Tenth Circuit Oral Arguments

The Tenth Circuit will be holding oral arguments this week in Denver, CO; at the University of Kansas on Oct. 3; and in Las Cruces, NM on October 17. Calendars are available here on the Tenth Circuit's website.

240-Month Sentence, More than Twice the Advisory Range, Affirmed for Mentally Ill Defendant

US v. Pinson, 2008 WL 4238999, No. 07-6013 et al. (Sept. 17, 2008)

Mr. Pinson, a 21-year-old "mentally-ill inmate with a propensity for making grandiose threats," was convicted of one count of threatening to harm the US President. Before sentencing, he told the district court that another inmate intended to kill the judge. This was false. He sent a letter to the Chief Judge for the district threatening to injure a juror. These exchanges resulted in two more convictions for willfully making a false statement to a US Marshall and for mailing a threatening communication. At sentencing, the district court varied upward and imposed the maximum he could on each count, to be served consecutively, for a total of 240 months imprisonment. He appealed the conviction for threatening the President and his sentence. The Court affirmed both the conviction and sentence "though not without some qualms about the latter."

There was no question but that Mr. Pinson was and is mentally ill with severe psychiatric problems. Nonetheless, after a 15-minute hearing, he was found competent to stand trial and, later, even to represent himself. At trial, Mr. Pinson's defense was that the letter was not a threat but a warning about a code he had cracked predicting the president would be killed by a third party. The jury found him guilty. Before sentencing, Mr. Pinson had more mental breakdowns and picked up the additional convictions, to which he pled guilty.

His guidelines range for all three convictions was 84-107 months. The court indicated it intended to vary upward. The government presented evidence that Mr. Pinson had written letters describing violent acts against people and animals, and made other threats. There was no corroboration that the acts had occurred or the threats carried out. The defense presented evidence that Mr. Pinson suffered from severe PTSD from severe childhood abuse and had a family history of mental illness.

The COA found sufficient evidence to support the conviction for threatening the President. It also affirmed the sentence, which was more than double the guideline range, even though it was somewhat concerned that the district court had effectively circumvented the civil commitment process and (as we know) effectively ensured that Mr. Pinson would be unlikely to receive adequate treatment in the prison setting for his unquestioned mental disorders. The district court's determination that he is a danger to the public was not clearly erroneous.

A few 10th Circuit cases:

U.S. v. Pruitt, 2008 WL 4218798 (9/16/08) (unpub'd) - On remand from the S. Ct. to reconsider in light of Gall, the unanimous panel rules its original decision that applied a deferential abuse-of-discretion standard to uphold a within-Guidelines sentence was consistent with Gall. This is the case where the extremely sympathetic defendant [career offender for nonviolent offenses from 1992] got a humongous sentence [292 months] for drug dealing and prompted the majority to say the sentence was at the "outer boundary" of reasonability and Judge McConnell to opine in a concurrence that the sentence seemed overly severe to him, but that he could not see how legally an appellate court could ever overturn a within-guideline sentence for substantive unreasonability. See U.S. v. Pruitt, 502 F.3d 1154 (10th Cir. 2007).

U.S. v. McCalister, 2008 WL 4239751 (9/17/08) (unpub'd) - The 10th affirms a denial of a request for 3582(c)(2) relief in part on the ground that the defendant's career offender status rendered the guideline amendment irrelevant with respect to the original guideline range calculation.

Ajaj v. U.S., 2008 WL 4192738 (9/15/08) (unpub'd) - The one-year deprivation of outside recreation was not sufficiently serious to violate the 8th Amendment. It was not a violation of the 8th Amendment to place the plaintiff federal prisoner in Florence, which is a high altitude place, despite the plaintiff's breathing issues. The doctor only wrote that the plaintiff would experience limited exercise capacity at facilities more than 2,000 feet above sea level and should be considered for facilities below that elevation. The doctor did not say placement at a lower elevation was medically necessary. It was also not a constitutional violation to place the plaintiff in a facility where smoking was allowed even though the medical instructions said the plaintiff should be placed in non-smoking housing. The facility did enough to keep the smoke at a low enough level, e.g. room him with non-smoking roommates and provide an air filter. But such housing could be a violation under the Federal Tort Claims Act's incorporation of Colorado's due care requirement. A Federal Tort Claims Act inmate alleging a particular need for smoke-free housing may potentially demonstrate a breach of duty of care when the U.S. fails to place the inmate in a completely smoke-free environment. So the case is remanded for further proceedings.

Judge Henry concurs in the result but urges the government not to take the position that deprivation of outdoor exercise for an extended period of time is never an 8th Amendment violation. Judge Henry believes such a deprivation is a violation, but in this case there was no such violation because the plaintiff would often decline to take advantage of the exercise opportunities offered.

Las Cruces' Use of Crosses Not an Establishment Violation

Weinbaum v. City of Las Cruces, Docket No. 06-2355 (10th Cir. September 12, 2008): Plaintiffs sued the City of Las Cruces, New Mexico, and the Las Cruces Public Schools based on the representation of three crosses in the City's seal, on district maintenance vehicles, in a sculpture, and in a school mural, alleging that the use constituted an improper endorsement of a specific religion, Christianity. The district court had held that there was no Establishment Clause violation because the City had a valid historical basis for using the symbol and the circumstances surrounding the use of the symbol demonstrated a secular purpose. The Court acknowledged that the use of the crosses raised legitimate Establishment Clause concerns. However, in this case, "Las Cruces’s unique name and history and the record in this case adequately establish according to requisite standards that the City and District’s challenged symbols were not intended to endorse Christianity and do not have the effect of doing so."

Statute of Limitations Precludes Suit Against Howard Hughes' Heirs

Dummar v. Lummis, 2008 WL 4183338 (9/12/08) (Published) - The statute of limitations precluded Melvin Dummar, the subject of the movie "Melvin and Howard," from suing the Howard Hughes heirs because they conspired to lie that Mr. Hughes never left his hotel for a long period of time that included the time, December, 1967, Mr. Dummar claimed he met and helped Mr. Hughes in the Nevada desert, prompting Mr. Hughes to put Mr. Dummar in his will. Recently, Mr. Dummar ran into a pilot who disclosed that he dropped Mr. Hughes off at a brothel in the Nevada desert in December, 1967, fell asleep, couldn't find Mr. Hughes and was told Mr. Hughes had left alone. Later, an aide to Mr. Hughes ordered the pilot to destroy all record references to Mr. Hughes as a passenger and had the pilot sign a nondisclosure agreement. While Mr. Dummar did not have the pilot's evidence until now, Mr. Dummar knew the grounds for his current lawsuit---that the heirs were lying---at the time of the will lawsuit 30 years ago. Out of luck

3d-party Guarantor of a Bail Bond Can Discharge Debt in Bankruptcy

In re Sandoval, 2008 WL 4173090 (9/11/08) (Published) - A debt incurred by a debtor who has guaranteed a bail bonds person to make the bail bonds person whole if the criminal defendant jumps bail is dischargeable in bankruptcy. The debt is not a "fine, penalty or forfeiture payable to and for the benefit of a governmental unit," since the debtor owed the bail bonds person, not a government agency.

Defendant Who Seeks a Change in Sentence Loses Expectation of Finality

Torres v. Heredia, 2008 WL 4139385 (9/9/08) (unpub'd) - It was not a violation of the petitioner's expectation of finality protected by the Double Jeopardy Clause when, in response to the petitioner's motion to reconsider sentence, the state district court found an arithmetical error and increased the sentence by a year. A defendant has no finality expectation when he seeks to change the sentence.

Perjury Conviction Based on Statements in 2255 Motion Upheld

U.S. v. Rodriguez-Chavez, 2008 WL 4139386 (9/9/08) (unpub'd) - The defendant was convicted of perjury for two false statements in his 2255 motion: (1) that his counsel never spoke to him about his offense; and (2) that his counsel forced him to sign a plea agreement. The 10th held the evidence was sufficient to prove the defendant knew the 2255 motion contained false statements, despite the Spanish-speaking defendant's claim that he just signed, but did not read, a document written in English, a language he didn't understand, by a jailhouse lawyer. The evidence the 10th said supported the bench verdict were: the defendant lived in the U.S. for 20 years and must have picked up some English; he worked various jobs and had extensive exposure to the criminal justice system; he had sent two letters to the court in English, although there was no evidence he wrote the letters; the relative ease of finding an inmate in a federal system who is bilingual; and he gave contradictory testimony about whether he gave information to the jailhouse lawyer.

Argument with Judge Supported Obstruction Enhancement

U.S. v. Judd, 2008 WL 4183920 (9/112/08) (unpub'd) - It was okay to impose an obstruction of justice enhancement where the defendant went to the home of the state judge who issued the warrant in his case, asked the judge to give him a handwriting sample to prove the judge's warrant signature was forged, the judge refused [while offering to look at the warrant and say whether he signed it or not] and a heated argument ensued. The defendant's actions were intimidating enough and it didn't matter that the motion to suppress deadline had passed.

Double-Counting Argument Rejected

U.S. v. Riccardi, 2008 WL 4183921 (9/12/08) (unpub'd) - It was not impermissible double-counting to impose an enhancement under USSG § 2G2.1(d)(1) for exploiting more than one minor and imposing another enhancement under § 4B1.5(b)(1) for exploiting those same minors on more than one occasion. These two guidelines protect two entirely different interests.

Civilian Volunteer Working with Cops Supports 2G2.1 Enhancement

U.S. v. Mai, 2008 WL 4139383 (9/9/08) (unpub'd) - It was okay to cross-reference from USSG § 2G1.3 (re: traveling to engage in illicit sexual conduct) to § 2G2.1 (sexual exploitation of a minor) [an 8-level higher base offense level]. The cross-reference is only appropriate when a "minor" is involved and "minor" is defined as a person under 18 or a "law enforcement officer" pretending to be under 18. In this case, the adult representing herself on the web as a minor was actually a civilian member of a group called "Perverted Justice." She was not a law enforcement officer. But, because it is not a defense to an enticement offense that a minor wasn't really involved and because the civilian volunteer was working with law enforcement, the cross-reference applied. It was close enough.

Duress Defense Denied to Reentry Defendant

U.S. v. Portillo-Madrid, 2008 WL 4183915 (9/12/08) (unpub'd) - The district court correctly refused to give a duress instruction in a reentry case where the defendant asserted he fled El Salvador and entered the U.S. because he was threatened with death due to his participation in a court proceeding. The defendant did not meet the duress requirement that he have no reasonable opportunity to escape the threatened harm. He had an opportunity to seek assistance from authorities in El Salvador and the United States. He did not seek help even though he lived in the U.S. for 6 years. His alleged belief that he could seek refuge in the U.S. as long as he obeyed the laws was irrelevant.

Upward Variance from 37 Months to 8 Years Ok'd

US v. Johnson, 2008 WL 4150019, No. 07-3112 (10th Cir. 9/10/08) (unpublished): The Tenth affirms the upward variance from the advisory guidelines range of 30-37 months to an 8-year sentence in a felon-in-possession case. On plain error review, the Court finds that the sentence was procedurally reasonable, rejecting arguments: (1) That the district court improperly relied on a memorandum prepared by the probation officer at the court's request; this memo used an "extrapolation method" to calculate a range of 51-63 months. (2) He didn't receive notice of the memorandum. (3) The judge didn't adequately explain his sentence. All were rejected because Mr. Johnson could not show substantial prejudice. The sentence was substantively reasonable based on the defendant's lengthy criminal history, which included five other firearms convictions.

Court Considers Wiretap, Sufficiency, and Sentencing Issues

United States v. Zapata, ___ F.3d ___, 2008 WL 4138520 (10th Cir. 2008)
COA upholds convictions and sentences for 5 co-defendants in an extensive drug conspiracy prosecution involving many family members and friends. After a key bust that turned a transporter into a cooperator, the government obtained wire taps which in turn led to a 35 count indictment, including drug trafficking conspiracy, against 18 co-defendants. Only the five appellants went to trial, with many original defendants testifying against them.

Wiretaps properly obtained–government showed necessity and was not required to exhaust all conceivable other methods of investigation. Government showed the limited success of traditional investigative techniques.

Conspiracy related issues: conspiracy evidence sufficient; no plain error in conspiracy jury instructions (submitting own jury instruction does not serve as an objection to an allegedly improper one given by the court), and there was no improper inference that Defendants were guilty because others were; no error in denying severance–no improper spillover in the evidence.

Sentencing: appropriate to attribute the total amount of drugs involved in the long-standing conspiracy to all the Defendants. Within guidelines sentences substantively reasonable.

No Abuse of Discretion to Exclude Defendant's Expert Testimony on False Confessions

United States v. Benally, ___ F.3d ___, 2008 WL 4138468 (10th Cir. 2008).

The COA finds district court did not abuse its discretion under Fed. Crim. Evid. R. 702 in not admitting testimony of defense expert on why individuals might falsely confess. Although the expert would not have testified to whether D falsely confessed, the testimony would nevertheless have encroached upon the jury function of determining credibility of the witnesses. Under 403, the district court could conclude that relevancy was low (the expert did not interview the D) and prejudice and confusion was high. The COA acknowledges that such testimony is not categorically inadmissible, but points out that in other cases in which such testimony was admitted it was linked to the Defendant’s mental disorder of some kind.

District court did not commit plain error in failing to pronounce under 18 U.S.C. § 3553(a) that the sentence was sufficient but no greater than necessary to comply with the purposes of the Act.

Miscellaneous from All Around the Circuits

It was A-OK for cops to search a house pursuant to the wife's consent, even though the husband had denied consent. You'd think that the Supreme Court's decision in Georgia v. Randolph, 547 US 103 (2006), would mean that the search was a definite no-no. But not in the eyes of the 7th Circuit. In this case, the police were called to a domestic violence disturbance. His wife said there were illegal items in the house. Defendant denied consent to search. The police then arrested him and took him away. They then got consent from the wife to search and found drugs, firearms and fireworks, which were the basis for federal charges. The 7th Circuit reasoned that the defendant's objection to the search "lost its force when he was validly arrested and taken to jail." At that point, his wife could consent despite her husband's earlier objection and the search of the home was therefore reasonable as to him. There was a dissenting opinion and this decision disagrees with an earlier 9th Cir. decision, creating a circuit split. US v. Henderson, No. 07-1014 (7th Cir. 8/6/08)

Waiver trumps plain error, the 3d Circuit held. Specifically, when a defendant who lost a suppression motion argues a new basis for suppression on appeal, the claim is waived and plain-error review is unavailable. US v. Rose, No. 05-5199 (3d Cir. 8/5/08)

Downside of Booker and Kimbrough: The 9th Circuit affirmed an upward enhancement for a defendant who was a member of a terrorist group where the 12-level increase was for the purpose of achieving parity with the codefendants' sentences, even though she was technically ineligible for a sentencing increase for acts against the government under USSG 3A1.4. (Unlike her codefendants, defendant's conduct did not involve any acts against the government but were solely on land owned by a private logging company.) "[A] sentence outside the applicable advisory guidelines range is not per se unreasonable when it is based on the district court's efforts to achieve sentencing parity between codefendants who engaged in similar conduct, where some defendants were properly subject to a sentencing enhancement, and others were not," the court said. US v. Tankersley, No. 07-30334 (9th Cir. 8/12/08)

A long delay between the time of the defendant's offense and his sentencing generally won't justify a variance from the advisory guidelines range, the 6th Cir. held. To the extent such a delay might be considered, it would have be both "unjustified" and prejudicial. In this case, the 14-year delay between the defendant's fraudulent conduct (lying to a bank about his debts and lying about his assets in a deposition) in 1991 and 1992 were caused by the defendant's bankruptcy, which ended in 1996; a 3-year delay in bringing the indictment (in 1999); a first sentencing in 2003, that was remanded pursuant to Booker in 2005; and now a second hearing. In the meantime, the defendant turned 70. Thus the district court, noting the 14 years of fraud-free conduct and the defendant's age, departed from the 30-37 month advisory range and imposed a sentence of one day with credit for time served. The 7th Cir. reversed again (sending it back for yet a 3d sentencing hearing), basically because the extent of the variance was just too much. US v. Davis, No. 05-3784 (6th Cir. 8/12/08)

Mere on-line chatting about having sex is insufficient to prove attempted enticement of a minor, the 7th Cir. held. In this case, the defendant was chatting with someone purporting to be a 14-year-old girl but (surprise!) was actually an undercover law enforcement agent. There was talk of sex and of the defendant traveling to meet her, but no specific arrangements were ever made. Thus, the 7th Cir. concluded, the defendant did not take any "substantial step" towards completing the offense and reversed his 18 USC 2422(b) convictions. US v. Gladish, No. 07-2718 (7th Cir. 7/31/08)

Cops who tailed a suspected drug trafficker to drug caches and the scene of an arranged buy had probable cause to believe that the driver was involved, the 2d Cir. held. It relied on Maryland v. Pringle, 540 US 74 (2003), and noted that in this case, the driver defendant drove the suspect to various locations and the suspect discussed the drug deal on the phone with the agents while the driver was likely in the car. US v. Rodriguez, No. 06-4813-cr (2d Cir. 7/25/08)

A conviction under the Texas statute prohibiting "offering to sell" drugs, Tex. Health and Safety Code Ann. 481.112, qualifies as an ACCA predicate, the 5th Cir. held. Distinguishing its decision holding that such a conviction did not qualify for the sentencing enhancement for "drug trafficking" under 2L1.2, it noted that the definition of "serious drug offense" under ACCA differs from the "drug trafficking" definition in the guideline. US v. Vickers, No. 07-10767 (5th Cir. 8/12/08)

Disregarding warning letters from an agency telling a defendant to stop what he was doing (in this case, selling veterinary-grade prescription drugs to horse owners) will not support a 2-level enhancement under USSG 2B1.1(b)(8) for violating a specific administrative order. The increase was unwarranted where the defendant was not given a specific order nor an opportunity to resolve the issue. US v. Goldberg, No. 07-1048 (3d Cir. 8/8/08)

Modifying its prior precedent in light of (yay!) Begay v. US, the 8th Cir. held that some forms of auto theft -- those that involve coercion -- may still satisfy the Sentencing Guidelines' definition of "crimes of violence" in 4B1.2(a) but others do not. At issue was whether defendant's Missouri conviction for auto theft, under a statute that included taking by coercion, deception, or simply taking without the owner's consent, supported an enhancement under USSG 2K2.1(a)(2). Only the first form satisfied the Begay test, the court held. Remand was necessary for the district court to determine exactly which form of theft applied to defendant's conviction. US v. Williams, No. 07-2679 (8th Cir. 8/11/08)

If the district court explicitly grants time for preparing pretrial motions, that time may be excluded from the Speedy Trial calculations, the 8th Cir. said, joining the majority of circuits to address the issue. US v. Bloate, No. 07-2357 (8th Cir. 7/25/08)

Co-Defendants' Drug Conspiracy Convictions Affirmed

U.S. v. Doddles, 2008 WL 4061054 (9/3/08) (Published) - There was sufficient evidence the defendant possessed ecstasy pills and a firearm found in another person's bedroom, [despite no evidence he had a gun or drugs on the date the firearm and drugs were found] in light of the defendant's access to that bedroom, his involvement in other drug transactions and shooting episodes, his membership in the gang that was connected to the pills and firearm, and his presence in the residence with the bedroom.

Any error in the prosecution's elicitation from various witnesses of testimony that the gang threatened the witnesses and the witnesses feared retaliation was not plain and did not affect the defendant's substantial rights. Some of the testimony explained the witnesses' prior inconsistent statements and countered the defense's cross-examination. And , besides, the evidence was overwhelming.

Characterizations of the defendant's prior convictions as felonies when they were misdemeanors did not affect the defendant's substantial rights because a government witness later corrected the mischaracterization. The defendant's right to a fair trial was not compromised by a juror who raised concerns about the defendant having access to the jury list and alluded to the testimony about "significant repercussions." The juror said his concern was partly spurred by his wife, "an avid Court TV watcher," who had asked the juror about security precautions in federal cases. He assured the court he could be impartial.

U.S. v. Edwards, 2008 WL 4059785 (9/3/08) (Published) - The admission of the defendant's prior convictions for possession of personal-usage amounts of controlled substances was error. The evidence was irrelevant. The facts were not similar to those in this case regarding distribution and did not serve any 404(b) purpose. But the error was harmless in light of the overwhelming evidence.

There was sufficient evidence to prove the co-defendant in the Doddles case was guilty of conspiracy to distribute drugs. There was evidence he helped to distribute drugs as a backup, was involved in a gunfight with other gang members and acted as the gang's muscle. There was sufficient evidence he possessed the pills and firearm in the bedroom for similar reasons that there was sufficient evidence against Mr. Doddles. There was also sufficient evidence the defendant was a user of controlled substances [illegally possessing a firearm], even though the evidence of his usage of drugs did not "pinpoint" precise dates. The jury could have reasonably concluded the defendant was smoking marijuana in a video. It can be assumed the witnesses were referring to the entire time period of the conspiracy. Because there was sufficient evidence of a temporal nexus between the firearm possession and the drug usage the statute was not unconstitutionally vague as applied. It was not violative of Rule 403 to admit evidence of several 911 calls regarding the shootout.

It was not error to add criminal history points for convictions that resulted in deferred sentences. USSG § 4A1.1(c) does not limit the addition of one point to convictions that result in sentences of imprisonment.

Prisoners Seeking Medical Care Not Certified as a Class

Shook v. Board of County Commissioners, 2008 WL 3982987 (8/29/08) (Published) - A troubling roadblock to prisoners obtaining better medical care. The 10th finds no abuse of discretion [although it might have decided differently, it claims] when the district court refused to certify prisoners of a Colorado jail as a class because the named plaintiffs had different complaints that required different individualized remedies.

Unpublished Decisions

U.S. v. Welch, 2008 WL 4061166 (9/3/08) (unpub'd) - The good news: officers did not have probable cause for the issuance of a warrant to search the defendant's home when the information they had indicated the defendant had used his home to make meth several months before but that he had stopped doing so. The agents' arranged delivery of boxes of glassware, etc., the defendant had left at another's home and the defendant's acceptance of that delivery did not revive the stale information.

Bad news: the good faith exception applies because there was a "minimal nexus" between the defendant's home and drug manufacturing.

Also, the warrant to search the defendant's computers was specific enough because it only allowed the search for drug-related information. It wasn't possible to specify a search methodology.

U.S. v. Valle-Martinez, 2008 WL 3906738 (8/26/08) (unpub'd) - The d. ct. plainly erred when it declared that it could not vary more than 50 % below the guideline range based solely on one factor. While reliance on one factor might be a symptom of an unreasonable sentence, it does not necessarily render a sentence unreasonable. But the defendant did not prevail under the plain error reversal standard because the defendant had not shown a "strong possibility of receiving a significantly lower sentence," [significantly being the operative word here], if the d. ct. had understood the law. The 10th distinguished the error in this case from an obvious calculation error that would be more freely noticed.

U.S. v. Herrera, 2008 WL 4060168 (9/3/08) (unpub'd) - The defendant could not take advantage of the crack amendments because the defendant's offense level would still be so high, 46, after application of the lower base offense level, that his range would still be life. Thus the amendments did not have the effect of lowering the range, as required under 18 U.S.C. § 3582(c)(2). Unfortunately, the 10th goes on to reject the defendant's argument that Booker makes him eligible for a reduction by stating enigmatically, that, because the relevant guideline § 1B1.10(b) requires the leaving of all other non-amended guideline applications intact, "under § 3582, we may consider only whether Mr. Herrera is entitled to a two-level offense reduction and not whether any other reduction of his sentence is warranted under the Guidelines." The 10th then emphasizes that under § 3582 a defendant can only receive a reduction based on events that occurred after the original sentencing. Does all of this mean a defendant who does qualify for a reduction cannot receive a Booker variance below the amended range? That's hard to say.

U.S. v. Shaw, 2008 WL 3893824 (8/25/08) (unpub'd) - To keep in mind the next time you have Judge O'Brien on your panel in an appeal waiver case. In a concurring opinion to a denial of § 2255 relief because the defendant did not prove he asked his attorney to appeal, Judge O'Brien disagrees with 10th Circuit law that an attorney has an obligation to appeal when the client requests the attorney to do so, even if the client had waived appeal in a plea agreement. Judge O'Brien quotes a 7th Circuit opinion that says: "Far from having a ministerial duty to follow his client's (latest) wishes, a lawyer has a duty to the judiciary to avoid frivolous litigation---and an appeal in the face of a valid waiver is frivolous."

U.S. v. Chon, 2008 WL 4054403 (9/2/08) (unpub'd) - Yet again, another worrisome extension of the issue waiver principle. In this case, the government presented as a surprise rebuttal witness the neighbor of a juror who knew the witness "pretty good." The 10th held the problem with the circumstances was not the admission of the witness's testimony, as defense counsel had argued below and to the 10th, but the impartiality of the juror. The defendant waived, [not just forfeited], his right to raise the juror issue on appeal because trial counsel mentioned, while thinking out loud, that counsel regretted they did not have an alternate juror, but did not pursue juror disqualification. Counsel's off-hand remark indicated counsel was aware of the juror-disqualification issue and made a strategic decision to complete the trial with the juror in question on the jury. The 10th speculated that counsel must have made that strategic decision because the d. ct. had excluded certain evidence due to the government's lack of notice of expert testimony and if there was a mistrial declared, presumably that excluded evidence would come in at the retrial.

U.S. v. Bell (Jonathan), 2008 WL 3919373 (8/27/08) (unpub'd) - There was sufficient evidence of the defendant's participation in possessing meth and cocaine with the intent to distribute because the evidence indicated he did more than "tag along."

U.S. v. Widjaja, 2008 WL 3919374 (8/27/08) (unpub'd) - It was not excusable neglect for a pro se defendant to file his notice of appeal late due to his misreading of the court's website information regarding the due date.

Long v. Peterson, 2008 WL 4065546 (9/3/08) (unpub'd) - The petitioner could not overcome a statute of limitations problem by virtue of actual innocence because he admitted causing the victim's death and only sought a conviction for a lesser degree offense.

Ali v. Dinwiddie, 2008 WL 3973065 (8/27/08) (unpub'd) - The d. ct. abused its discretion when it denied the plaintiff an opportunity to amend his complaint in light of the defendants' response to his original § 1983 complaint.

Shupe v. Wyoming Dept. of Corrections, 2008 WL 3906757 (8/25/08) (unpub'd) - A prison has no constitutional obligation to provide materials to an inmate to pursue matters unrelated to convictions or confinement conditions, such as the parental termination proceedings in this case. The prison need only avoid obstructing the inmate's own efforts to access the courts.

U.S. v. Bell (Michael), 2008 WL 3906739 (8/26/08) (unpub'd) - The d. ct. did not have an affirmative duty to provide the defendant with hair clippers so that the defendant could cut his facial hair and show he did not have the scar or blemish on his face that the bank robber in the surveillance photo had.