Sunday, August 18, 2019

Tenth Circuit Breviaries

Image result for computer banConditions of Release

A special condition of supervised release granting authority to the probation officer to decide whether and when the defendant may use computers and internet-access devices is impermissibly broad and an abuse of discretion in United States v. Blair.

Civil Rights

Prosecutors are not absolutely immune from liability for fabricating evidence during the preliminary investigation of a crime. For more information, and a fascinating (if disturbing) account of a wrongful conviction, read Bledsoe v. Vanderbilt.

Wednesday, August 14, 2019

Yes, officer, you may stop someone for flipping you off

So says the Court of Appeals of North Carolina. The court held, over a dissent, that a state trooper had reasonable suspicion to stop a vehicle after its passenger flashed an obscene hand gesture at the officer, as the vehicle passed the officer assisting a stalled motorist. During the stop, the passenger refused to provide identification, and got a ticket for obstructing a public officer.

In approving the stop, the court explained that even if the middle-finger gesture itself is not a crime, the "trooper saw Defendant make rude, distracting gestures while traveling on a highway in a moving vehicle in the vicinity of other moving vehicles." Those gestures, the court said, were evidence of the crime of disorderly conduct. The court stressed that the gestures were aimed at an "unknown target" and "could alert an objective officer to an impending breach of the peace."

This result differs from one reached by the Sixth Circuit earlier this year.  In the Sixth Circuit case, a traffic stop had ended and the driver gestured to the officer as she left. The officer pulled her over again, and upgraded the already-given ticket to a more serious violation. The Sixth Circuit concluded that the stop violated the Fourth Amendment because the driver “did not break any law that would justify the second stop and at most was exercising her free speech rights.” In direct contrast to the North Carolina court, the Sixth Circuit found that not only is the gesture itself not a crime, but it is also not evidence of any other ongoing crime.

8/19/19 update: The North Carolina Court of Appeals has withdrawn its opinion. We will follow along and see what they decide to do. Stay tuned!

8/20/19 update: The North Carolina Court of Appeals issued a new opinion, again upholding the stop. This opinion adds a little more detail to explain that there were several motorists in the area, that it was unclear who the defendant was gesturing at, and that the officer reasonably believed the defendant's gestures could have been aimed at another motorist and that the situation was "escalating." The court says that there is no evidence the officer made the stop out of anger, and even if he did, subjective intent is irrelevant. This opinion is more careful to clarify that flipping off a police officer is protected speech activity.  

Sunday, August 11, 2019

Tenth Circuit Breviaries

Last week in the Tenth Circuit:

Defense experts

Don't be tardy or stingy with your defense-expert notice, especially if the court has granted multiple continuances to accommodate your expert search. That's the lesson of United States v. Paup, affirming a magistrate judge's exclusion of the defendant's expert witness.

Sentencing: obstruction of justice

In Paup, the Tenth Circuit also affirmed the magistrate judge's imposition of a 2-level offense-level increase for perjury under USSG 3C1.1.

Notice of appeal

A person who has been convicted and sentenced may immediately appeal from the judgment of conviction and sentence, even if restitution is still pending. This is true even if the district court has upheld a magistrate-imposed sentence and remanded the case to the magistrate for further restitution proceedings. Despite the outstanding restitution order, the conviction and sentence are final for notice-of-appeal purposes. Read Paup to learn more.

Cautionary note: This notice of appeal will not invoke appellate review of the eventual restitution order. A separate notice of appeal must be filed from that order, at which point, if practicable, the two appeals may consolidated.

Sunday, August 4, 2019

Tenth Circuit Breviaries

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

Sentencing: official victim

USSG 3A1.2(c)(1) provides for a hefty 6-level offense-level increase if the defendant assaulted a law-enforcement officer. This guideline requires proof of an intent to instill fear of bodily harm. So said the Tenth Circuit in United States v. Gonzales, vacating Mr. Gonzales's sentence and remanding for resentencing because the district court erroneously interpreted this section as lacking any intent requirement.

Wednesday, July 31, 2019

"This ends here": no more sentencing based on acquitted conduct (in Michigan state court, anyway)

The Tenth Circuit has long held---as have other circuits---that a district court may consider acquitted conduct as relevant conduct at sentencing.

It's time to ask the circuits to reconsider. This week, the Michigan Supreme Court held that "due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted." In People v. Beck (available here), the majority explained why this conclusion is not foreclosed by existing United States Supreme Court decisions. The majority also offered an impressive list of judges and commentators who have criticized the use of acquitted conduct at sentencing, including Justice Kavanaugh when he was on the DC Circuit (see here).

The Michigan decision was based not on the Michigan state constitution, but on the due process clause of the Fourteenth Amendment to the United States Constitution. Chances are good that the state will petition the United States Supreme Court for a writ of certiorari. Will the High Court bite? I don't know, but it won't hurt our clients to start preserving the issue (and it might hurt them if we don't).

Sunday, July 28, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:


In Eaton v. Pacheco, a federal district court partially granted Section 2254 relief to Mr. Eaton, vacating his Wyoming death sentence. But the district court affirmed Mr. Eaton's convictions for murder and other crimes, and refused to bar the state from conducting new death-penalty proceedings. On appeal, the Tenth Circuit affirmed, holding that (1) the district court was not required to hold an evidentiary hearing on Mr. Eaton's ineffective-assistance-of-counsel-claims; (2) the district court did not err in denying those claims; (3) the district court did not err in refusing to bar further death-penalty proceedings; and (4) Mr. Eaton's Brady claim was waived (as to sentencing) and beyond the scope of his certificate of appealability (as to guilt).

Of particular interest to postconviction practitioners are Eaton's discussions of Pinholster; of stand-alone IAC claims versus IAC as cause/prejudice to excuse procedural default; and of the need for specificity in requesting Section 2254 relief.

The Tenth Circuit also reminds all appellate practitioners in Eaton that arguments raised perfunctorily in an opening brief, or for the first time in a reply brief will be considered waived.

Sentencing: organizer/leader versus manager/supervisor

Check out United States v. Rubio-Sepulveda (unpublished) for a detailed discussion of what makes an organizer/leader versus a manager/supervisor under USSG 3B1.1. In this case the Tenth Circuit held that the district court clearly erred when it applied the organizer/leader enhancement to Mr. Rubio-Sepulveda.
Image result for leader

Thursday, July 25, 2019

How to get a Franks hearing

What makes a good Franks motion? To find out, check out Judge Dillon's order granting a hearing in United States v. Anderson, No. 7:19-cr-00027, 2019 WL 3307841 (W.D. Va. July 23, 2019).

In Anderson, the search warrant affidavit at issue (1) failed to clarify that the affiant was relying on controlled buys conducted by two (not just one) confidential informants (and not conducted by the affiant himself); (2) made no statements concerning either confidential informant's credibility; and (3) omitted information that the first confidential informant had been caught with a narcotic during a previous controlled buy and had been terminated from the investigation.

This detailed offer of proof was sufficient to warrant a Franks hearing:

"[W]hat the magistrate did not know, and could not have gleaned from the totality of the affidavit, is that there were two different confidential informants, that no information about reliability or trustworthiness had been provided for either of them, and that the first confidential informant was in possession of narcotics during one of the earlier controlled buys from Anderson. Therefore, looking to the omissions and the affidavit as a whole, the court finds that Anderson has also made a substantial preliminary showing under the materiality prong that the omitted information was material and necessary to the finding of probable cause."