Monday, October 14, 2019

Tenth Circuit Breviaries

Just one published criminal case from the Tenth Circuit last week:

Sufficiency of evidence of drug dealing

In United States v. Duran, the Tenth Circuit held that the evidence was sufficient to support Mr. Duran's drug-distribution, conspiracy, and telephone-count convictions. The opinion contains an interesting discussion of what evidence will suffice absent controlled purchases or the actual observation of drugs. Here, the evidence consisted primarily of recorded telephone calls, as interpreted by law-enforcement witnesses.

Evidentiary issues

The Duran Court rejected Mr. Duran's relevance, prejudice, hearsay, and foundational challenges to law-enforcement testimony about his involvement in previous controlled buys.

The Court further rejected Mr. Duran's opinion, hearsay, and prejudice challenges to an officer's lay interpretation of code words on the recorded telephone calls, reminding us that "[l]aw-enforcement agents can ordinarily testify that the defendants were engaged in drug trafficking because this testimony constitutes opinion evidence on a fact issue." And the Court held that an agent's expert interpretation of the code words was also properly admitted.

Wednesday, October 9, 2019

2nd Cir: Guidelines sentence in terrorism case inadequately explained

In United States v. Pugh, 937 F.3d 108 (2nd Cir. 2019), the defendant was convicted of attempting to provide material support to a foreign terrorist organization (by attempting to join ISIS) and obstruction of justice (by destroying USB drives and data). The guidelines range was 360 to 420 months. The district court imposed consecutive statutory-maximum sentences on each count, 180 months on the material support conviction and 240 months for obstruction, for a total of 420 months--a guidelines sentence. The 2nd Circuit affirmed the convictions but vacated the sentence, finding that the district court had not adequately explained it. A district court generally need not give a lengthy explanation for a guidelines sentence. And the court made two pages of comments prior to imposing the sentence. But, the 2nd Circuit says, most of the discussion was about the defendant's guilt, not the appropriate sentence. The panel emphasizes that the defendant was convicted of multiple counts and the sentencing judge did not articulate why an already lengthy statutory-maximum sentence on one count was not sufficient, before imposing consecutive statutory-maximum sentences. Because of the procedural error, the panel did not reach the issue of substantive reasonableness.

Judge Calabresi concurred, to highlight how the government was able to use an obstruction of justice conviction to more than double the available sentence. The concurrence explains that a sentence for obstruction must reflect the seriousness of the obstruction conduct. It should not be used to punish conduct underlying a different count, because the government or the court is dissatisfied with the statutory maximum on the other count. This discussion hints, if reimposed, the sentence may be substantively unreasonable as well. Or, at least, one judge may think so.


Sunday, October 6, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit . . .

USSG § 4B1.2(b)

A "counterfeit substance" under this guideline is a noncontrolled substance that is passed off as a controlled substance. It is not a controlled substance that has been fraudulently or without authorization mislabeled or misbranded. So declared the Tenth Circuit, joining the five other circuits to have addressed this issue, in United States v. Thomas.

Plurality opinions

What’s the mandate of a plurality opinion when “two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales”? It's the outcome that matters, says Harte v. Johnson County Board Comm'rs, round two of a Fourth Amendment lawsuit that we've blogged about before.

Jury-selection issues

Read Harte also for a reminder of how hard it is to win jury-selection claims on appeal. When it comes to juror bias, for instance, "the deference due to district courts is at its pinnacle." And Batson claims have always been an uphill battle on appeal, and a losing battle in this case.

Wednesday, October 2, 2019

Confession without corroboration is insufficient proof of guilt


The Seventh Circuit reminds us that “It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.” In this 18 U.S.C. § 924(a)(1) case, the defendant confessed to two ATF agents that he lied to a firearms dealer by stating that he was buying two firearms for himself, when he was really purchasing them for someone else. At trial, the government presented the testimony of one of the ATF agents who heard the confession. The Seventh Circuit found there was insufficient proof of guilt because there was no independent evidence corroborating the confession. The defendant even confessed twice. But, says the court, “the government cannot rely on a second uncorroborated confession as independent evidence corroborating an initial one, particularly where the second does nothing to fortify the truth of the confession by offering further corroboration that a crime was committed.”

Sunday, September 29, 2019

SCOTUS 2019 term preview

The kids are back in school, the days are getting shorter, the nights are getting cooler, and you know what that means: It's Supreme Court season! The Court will hold its first conference of the term this week, and issue its first orders and hold oral argument next week. Here are the cases to be argued this term (so far) that we're watching (descriptions taken directly from the question presented in each petition for certiorari):

Second Amendment

New York State Rifle & Pistol Association Inc. v. City of New York: Whether [New York] City’s ban on transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the Commerce Clause, and the constitutional right to travel.

Fourth Amendment

Kansas v. Glover: [W]hether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

Jurisdiction

Sharp v. Murphy (held over from last term for reargument): Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

Fraud

Kelley v. United States: Does a public official “defraud” the government of its property by advancing a “public policy reason” for an official decision that is not her subjective “real reason” for making the decision?

Immigration-related state prosecutions

Kansas v. Garcia: 1. Whether IRCA expressly preempts the States from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

2. [Question by the Court] Whether the Immigration Reform and Control Act impliedly preempts Kansas’s prosecution of respondents.


Insanity defense

Kahler v. Kansas: Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?

Unanimous verdict

Ramos v. Louisiana: Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict?  

Sentencing

Holguin-Hernandez v. United States: Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

Shular v. United States: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the Act?

McKinney v. Arizona: 1. Whether the Arizona Supreme Court was required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted.

2. Whether the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), requires resentencing.
 
The first question was stated more broadly within the petition as follows: Whether a court must apply the law as it exists today, rather than as it existed at the time a defendant’s conviction first became final, when correcting a defendant’s sentence or conducting a resentencing.


Postconviction

Mathena v. Malvo: Did the Fourth Circuit err in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question?

Bannister v. Davis (cert granted on pro se petition): [Question by the Court] Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U. S. 524 (2005). 
 
For a deeper dive into this term's criminal cases, check out SCOTUSblog's analysis here.

Wednesday, September 25, 2019

"May it please the Court"

Good morning, Your Honors, my name is ___, attorney for ___.

May I proceed, Your Honor? My name is ___, and I represent ___.

Good morning Your Honors and counsel, [name] from ___, appearing for ___.

Thank you, Your Honors, may it please the Court, my name is ___, appearing on behalf of ___.

Thank you Your Honor and may it please the Court, [name], for the appellants here.

Thank you, Your Honors, good morning, may it please the Court, counsel, my name is ___, and I'm appearing on behalf of appellant ___.

May it please the Court, good morning.

-------------------

These are just a few of the introductions made by litigants before oral argument to the Tenth Circuit this month. How do you introduce yourself to the Court? Do you invoke the traditional phrase "May it please the Court"? Do you acknowledge counsel on the other side? Do you state your name and who you represent? The Tenth Circuit's Practitioner's Guide does not require any particular greeting, but it does instruct counsel that, "[a]t the beginning of the argument, counsel should identify themselves to the court."

The Supreme Court takes the opposite approach. Its Guide for Counsel instructs that after the Chief Justice has recognized you by name, "you may acknowledge the Court by the usual: 'Mr. Chief Justice and may it please the Court. . . .' Do not introduce yourself or co-counsel." The "may" makes the greeting sound optional, but Supreme Court practitioners use it with near uniformity.

Whether you use that traditional greeting in the Tenth Circuit or other courts is up to you. Judges who have addressed the issue say it doesn't hurt, and it may be a useful icebreaker. Two pieces of advice: make it short (you don't want to waste valuable argument time on an introduction), and know what you're going to say ahead of time so that you don't hem and haw during your very first statements to the Court.

Sunday, September 22, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Sentencing enhancements

Want to preserve an objection to a sentencing enhancement? Object to the PSR's application of the enhancement. Object to the PSR's factfinding in support of the enhancement. Be specific. Restate the objection to both the factual findings and the legal conclusion with specificity at sentencing. Do not rely on government concessions in the plea agreement. These are the lessons of United States v. McClaflin, affirming the district court's independent factfinding (based on sworn victim statements), and imposition of a 6-level enhancement under USSG § 2B1.1 for substantial financial hardship to more than 25 victims.

Continuances

In McClaflin, the Tenth Circuit also held that the district court did not abuse its discretion when it refused to continue the defendant's sentencing hearing.

Sex offenses

In United States v. A.S., the Tenth Circuit tackled the interplay of Fed. R. Evid. 412 (governing admissibility of a victim's prior sexual behavior), Fed. R. Evid. 608 (limiting admission of specific instances of conduct), and the Sixth Amendment right of confrontation, finding no error in the district court's rulings in that case, and affirming A.S.'s sexual-assault conviction.

In a footnote, the Court observed that Rule 412 only applies to evidence being offered for specific purposes, and that it might not apply to evidence of prior false accusations (citing, among other sources, the Rule's advisory notes). The Court did not need to reach that question in A.S.

Juveniles

In A.S., the Tenth Circuit also examined at length sentencing under the Federal Juvenile Delinquency Act, rejecting the view (held by the Ninth Circuit) that juvenile sentences must be the least restrictive means of achieving rehabilitation and addressing the needs of the community. Read A.S. if you've got a juvenile client facing federal sentencing.

28 U.S.C. § 2255; ineffective assistance of counsel; Brady

In United States v. Holloway, the Tenth Circuit rejected the defendant's arguments that (1) he experienced a total breakdown with counsel resulting in ineffective assistance of counsel (breakdown not established under Romero factors); (2) his counsel ineffectively failed to object to a sentencing enhancement (objection not a clear winner and could have prejudiced Holloway); and (3) the government suppressed exculpatory evidence (exculpatory nature of evidence merely speculative--Holloway failed to seek discovery of it in his 2255 proceedings).