Monday, July 13, 2020

Tenth Circuit Breviaries

ICE holds & pretrial release

The Bail Reform Act does not preclude removal under the Immigration and Nationality Act. And "the government does not need to make a choice between a criminal prosecution or removal." Thus, a district court that releases a person before trial in a criminal case is not required (or, it seems, even authorized) to order ICE not to remove that person during the period of pretrial release. So said the Tenth Circuit in United States v. Barrera-Landa.

Fourth Amendment

Anthony Kapinski shot and killed two other men during a fracas in a crowded parking lot, and then fled. The investigating detective interviewed eyewitnesses and reviewed surveillance videos of the event. The detective secured a warrant for Mr. Kapinski's arrest by way of an affidavit that did not mention the surveillance videos. Those videos ultimately supported Mr. Kapinski's claim of self defense, and he was acquitted at trial. He sued the detective and the city for false arrest and malicious prosecution. The district court granted the detective summary judgment. Mr. Kapinski appealed.

The Tenth Circuit affirmed in Kapinski v. City of Albuquerque. The Court held that the detective's omission of any mention of the videos in the search-warrant affidavit was not material. Even with the videos, the affidavit provided probable cause. And there was insufficient evidence that the omission was reckless, especially in light of the detective's inclusion of other self-defense-supporting facts in the affidavit.

Conspiracy

In United States v. Wyatt, the Tenth Circuit reversed Mr. Wyatt's two convictions for conspiracy to sell guns without a license, because the district court failed to instruct the jury that any conspiracy had to be wilful, that is, that the conspirators had to know that what they had agreed to do was unlawful. But the Court rejected Mr. Wyatt's argument that the evidence was insufficient to prove the charged conspiracies.

ACCA predicate offenses

In United States v. Cantu, the Tenth Circuit held that Mr. Cantu's prior convictions for Oklahoma drug offenses were not ACCA predicates. This was because Oklahoma defines "controlled dangerous substances" more broadly than the ACCA defines controlled substances. The Tenth Circuit rejected the government's argument that the Oklahoma statute is divisible as to each controlled substance. The takeaway? First, read Cantu to learn how divisibility works. Second, always review the statutes underlying your client's prior drug convictions. If, at the time of your client's prior offense, those statutes covered drugs not covered by federal law, you may have a good argument that your client's prior conviction is not a sentence-enhancement predicate.

Thursday, July 9, 2020

Which gun with which offense?

A person convicted of a drug crime with a mandatory minimum is eligible for the safety valve--and thus freed from the mandatory minimum--if, among other requirements, he did not "possess a firearm or other dangerous weapon. . . in connection with the offense." 18 U.S.C. § 3553(f). In United States v. Hodgkiss, the Eighth Circuit held that “the offense” strictly means the offense of conviction, and does not include relevant conduct. In Hodgkiss, the defendant pleaded guilty to a drug-trafficking offense in April 2018 that did not involve a gun, and also pleaded to possessing a weapon during a different drug-trafficking offense two months later. The court held that the defendant did not possess the gun in connection with the April 2018 drug-trafficking offense he was convicted of, even if both episodes were part of the same relevant conduct for sentencing guideline purposes.

Although it doesn't appear that the Tenth Circuit has addressed this statutory-interpretation question directly, this holding is consistent with what the Tenth Circuit has said. For example, in United States v. Hargrove, 911 F.3d 1306, 1328 (10th Cir. 2019), the court emphasized that for the safety-valve requirements, possession of a weapon does not include a codefendant's weapon, and means an "active possession whereby there is a close connection linking the individual defendant, the weapon and the offense.”  

Thursday, July 2, 2020

"The Constitution is a GLORIOUS LIBERTY DOCUMENT"


In honor of Independence Day, we offer the words of Frederick Douglass, excerpted from his 1852 speech to the Rochester Ladies' Anti-Slavery Society: "What To The Slave Is The Fourth Of July?"

1852) Frederick Douglass, "What, To The Slave, Is The Fourth Of ...Feeling themselves harshly and unjustly treated by the home government, your fathers, like men of honesty, and men of spirit, earnestly sought redress. They petitioned and remonstrated; they did so in a decorous, respectful, and loyal manner. Their conduct was wholly unexceptionable. This, however, did not answer the purpose. They saw themselves treated with sovereign indifference, coldness and scorn. Yet they persevered. They were not the men to look back.
As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharaoh and his hosts were drowned in the Red Sea, the British Government persisted in the exactions complained of.
The madness of this course, we believe, is admitted now, even by England; but we  fear the lesson is wholly lost on our present ruler.
* * *
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. 
* * *
Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.

Read the entire speech here. And have a safe holiday.

Tuesday, June 30, 2020

Judicial endorsement of police "experts"

When are police officers "experts," and what message does their designation as experts send to the jury?

In United States v. Cristerna-Gonzalez, the Tenth Circuit clarified the law governing “expert” testimony by the police.

First, the Court clarified the boundary between “Opinion Testimony by Lay Witnesses,” Fed. R. Evid. 701, and “Testimony by Expert Witnesses,” Fed. R. Evid. 702. The lay opinion rule “does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.” This means that “knowledge derived from previous professional experience falls squarely within the scope of Rule 702 [governing expert testimony] and thus by definition outside of Rule 701 [lay opinion testimony].” In the context of police testimony purporting to interpret drug code language, “testimony based on knowledge derived from the investigation of the case at hand is typically regarded as lay testimony, opinion testimony premised on the officer’s professional experience as a whole is expert testimony.” Although not addressed in Cristerna-Gonzalez, the lay/expert boundary is crucial because it determines whether a summary of expert testimony must be provided and whether Daubert is implicated.

Second, citing a federal rules of evidence treatise and the ABA’s Civil Trial Standards, the Cristerna-Gonzalez panel signaled its disapproval of the common prosecution tactic of causing the trial judge to endorse a witness as an “expert” in front of the jury. The panel cited particularly helpful language from the comment to the relevant ABA Civil Trial Standard:
[T]here is no need for the court to announce to the jury that it has found that a witness is an expert or that expert testimony will be permitted. The use of the term “expert” may appear to a jury to be a kind of judicial imprimatur that favors the witness. Because expert testimony is not entitled to greater weight than other testimony, the practice of securing what may appear to be a judicial endorsement is undesirable.
The takeaway?

1. Object at trial to expert testimony from police officers if the government did not comply with the notice requirements of Rule 16 or any pretrial scheduling order.

2. Has there been notice? Before trial, challenge the officer's qualifications and the basis for his or her proposed testimony (is it really based on sufficient facts or data?). In other words, put the government through its Rule 702/Daubert paces.

3. Did you lose that challenge? Move the district court in limine to prevent the government from seeking to have the court endorse the officer as an "expert" in front of the jury.

--Tom Bartee

Sunday, June 28, 2020

Tenth Circuit Breviaries

Fourth Amendment

In Hinkle v. Beckham County, Oklahoma, the Tenth Circuit held that an officer had probable cause to arrest based on information that the person arrested owned (or had a connection with) a trailer that had been reported stolen. It did not matter that the person informed the officer that the information was mistaken---"a soon-to-be-arrestee's bare proclamations of innocence" do not dissipate probable cause.

But the arrestee's body-cavity strip search upon admission into the jail was unreasonable under the Fourth Amendment. There was no justification at the time of the search--that is, no decision had been made that the arrestee would be placed in the jail's general population (in fact, he was placed in segregation), and there was no cause to believe that he was concealing evidence of a crime.

Evidentiary Issues

In United States v. Cristerna-Gonzalez, the Tenth Circuit affirmed Mr. Cristerna-Gonzalez's drug convictions, finding no reversible error in (1) the unobjected-to admission of expert law-enforcement testimony (no plain-error); (2) the unobjected-to admission of modus-operandi evidence consistent with Fed. R. Evid. 404(b) (no error, much less plain error); or (3) the admission over objection of irrelevant and prejudicial testimony suggesting a connection between this case and a notorious drug cartel (this was error, but it was harmless).

Sentencing: Procedural & Substantive Reasonableness

In United States v. Pena, a carjacking/gun/methamphetamine case, the Tenth Circuit affirmed an upward-departure sentence of 360 months' imprisonment--more than twice the high end of Mr. Pena's guidelines range. The district court addressed the statutory factors and adequately explained the sentence.

Thursday, June 25, 2020

Dig. Dig deeper.

Racial profiling. Excessive force. On the street, police misconduct looks obvious. In the courtroom, it's a different matter. How do we go about proving an officer's race-based motivation, or a police department's take-no-prisoners culture? There are loose lips and smoking guns out there. If we just dig deeply enough, we might find, for instance, that the department's training materials include this image (small print above image: "protecting and serving the POOP out of you"):

Or we might find that the department's training materials include---grossly-out-of-context---a link to a Chris Rock comedy routine replete with fake and real video clips of police officers beating Black people, including Rodney King.

That evidence came to light in the excessive-force case Wright v. City of Euclid.

Is the Euclid Police Department unique? I doubt it. If we look a little harder, what else might we find?

Remember, for instance, Foster v. Chatman, in which a state open-records request yielded documentary evidence that the prosecutors' peremptory strikes of Black prospective jurors at Timothy Foster's capital-murder trial were racially motivated.

Evidence is out there. We are unlikely to get it through criminal discovery. So let's put on our investigator pants and get to work.

Tuesday, June 23, 2020

The Doctrine of Chances and Rule 404(b)

While driving drunk in the wrong lane of a highway inside the Ute Mountain Ute Reservation, Timothy Merritt struck an oncoming car, killing one of that car’s passengers and injuring another. A jury convicted him of second-degree-murder and assault.

On appeal, the Tenth Circuit approved the admission at Merritt’s trial of three other DUI-related acts. Two of the other acts were prior convictions. The third was a drunk-driving arrest that occurred while Merritt was on bond in the federal case.

The Tenth Circuit reasoned that other acts tended to prove that Merritt had the requisite awareness of the serious risk of harm associated with drunk driving, rendering his decision to drive reckless and wanton, thereby supporting a finding of malice aforethought. The Tenth Circuit rejected Merritt’s argument that driving drunk does not evince an awareness of the riskiness but rather suggests the opposite.

In assessing the admissibility of the drunk driving incident while on bond, the Tenth Circuit considered the government’s argument that the similarity of that incident to the charged crime implicated the “doctrine of chances.” Under this doctrine, the similarity of the charged conduct to other conduct increases the likelihood that the incidents are not innocent random events. After seemingly signaling that the doctrine might apply, the Court decided not to decide, reasoning that any error in the admission of the evidence was harmless.

Applying the doctrine of chances to prove mens rea is fraught with the danger that the jury will misuse the other-crimes evidence. As with other-crimes evidence generally, the problem is one of dual relevance: the evidence supports the improper inference of bad character as well as the proper inference of intent. The improper chain of inference, prohibited by FRE 404(b), has two steps. Step One involves inferring from a past crime that the defendant has a bad character. Of course, this inference is itself empirically weak. Beyond that, the inference creates the risk that the jury might convict just to punish the defendant for her criminal past. Step Two involves inferring from this bad character that the defendant must be guilty. This creates the risk that the jury will overvalue the bad character evidence, failing to recognize that bad character is empirically a poor predictor of behavior on a particular occasion.

When used to prove the actus reus (as opposed to the mens rea) of a crime, the doctrine of chances does not necessarily implicate character concerns. A classic use of the doctrine is to prove that an initially unexplained death that is discovered to be similar to other deaths associated with the defendant was actually a homicide. The warrant for this inference is that common sense tells us that these similar deaths are very unlikely to represent mere coincidences. This use of the doctrine certainly implies the defendant’s bad character, but that implication is a side effect, not a necessary link in the inferential chain. But when the doctrine of chances is ostensibly used to prove mens rea, the close connection between a person’s intent and their character makes it unlikely that a lay jury could follow a limiting instruction—even crafting an intelligible instruction conveying this distinction would be difficult. If nothing else, Merritt at least flags the issue, allowing defense lawyers to anticipate and prepare to battle its use.

---Tom Bartee