Saturday, January 31, 2015

The First Vacated Sentence of 2015

In the Tenth Circuit, in a published decision, anyway (the Court vacated a sentence in an earlier unpublished decision where the district court found a fair possibility that the district court imposed a lengthier sentence for purposes of rehabilitation, an error thanks to this Supreme Court case).
The published decision is United States v. Wray, and it was litigated, successfully, by Matthew Belcher, an AFPD in Denver.
The issue: whether a prior Colorado conviction for "sexual assault -- 10 years age difference" (in the Court's words: "in essence, a statutory rape conviction") qualified as a crime of violence under USSG 2K2.1 & 4B1.2 
The Holding: Categorically speaking, it does not.
The Analysis:
The Court addresses two potential avenues:
(1) whether the conviction qualifies as a crime of violence because it is a "forcible sex offense" under Application Note 1 to 4B1.2; and/or
(2) whether the conviction qualifies as a crime of violence under the residual clause of 4B1.2 (a residual clause identical to the one the Supreme Court will determine is either void for vagueness or not in Johnson v. United States)  
The bifurcated analysis is a great reminder that you need to know, and pay attention to, the enumerated offenses in Application Note 1. It is also a great reminder that the Guidelines' crime-of-violence provision is different, in this respect, from the violent felony provision in the Armed Career Criminal Act (although, earlier in this decision, the Tenth Circuit tells us that the analysis is essentially the same).
In holding that statutory rape is not a "forcible sex offense," the Court:
  • reviews a different definition of "crime of violence" in USSG 2L1.2 (applicable in immigration-related offenses), a definition that includes statutory rape, and, in a solid display of statutory interpretation, concludes that the absence of statutory rape in Application Note 1 means that Note 1 was not meant to include it as a crime of violence (espressio unius est exclusion alterius) (somewhat inexplicitly, the government actually cited 2L1.2 in support of its argument); and
  • holds that consensual sex, considered nonconsensual solely because of the age of the victim, does not qualify as "forcible" conduct.
The Court spent some time distinguishing a few prior cases, and finding one, United States v. Dennis, that supported its conclusion. It also relied somewhat heavily on an unpublished decision from the Fourth Circuit. So, when researching an issue, don't forget the unpublished decisions. Some courts of appeals never cite them, but the Tenth Circuit is not one of those courts.   

In holding that statutory rape does not qualify as a crime of violence under the residual clause (an offense that "involves conduct that presents a serious potential risk of physical injury to another"), the Court held that:
  • the commission of a strict liability, negligence, or recklessness offense is not a crime of violence; and
  • statutory rape is a strict liability offense, at least where the statute at issue does not require that the defendant know the victim's age.
 Sentence vacated. Case remanded for resentencing.

Friday, January 30, 2015

Issues Pending in the 10th Circuit

Today, we launched our Issues Pending in the 10th Circuit, available on our website here. We're excited about it. The Preface gives some context to it, but it's fairly simple: we now track issues raised in the 10th Circuit and categorize those issues for you, and anyone else, to read. At some point, the document will be comprehensive. In other words, it will include all issues currently pending in criminal cases in the 10th Circuit. And by current, we mean that day. This might take a minute. We began this project on December 1, 2014. Any issues briefed and argued prior to that might not be on the document. But we are working on it. Every day.
You can use this information in so many ways, whether to spot issues yourself, determine whether an issue you intend to raise is now pending, notify the Tenth Circuit of a related case raising a similar issue, or just to familiarize yourself with the issues others are raising on appeal. We encourage you to use it often. And let us know if you have questions or concerns. This is something that has never been done in the Tenth Circuit. We hope our plan is a good one and that you can benefit from it. 

Tuesday, January 27, 2015

The Longest Opinion Ever on Statements against Interest

We guess, anyway. In keeping with a noticeable pattern, the Tenth Circuit published a very long opinion (26 pages) last week. This one is on Federal Rule of Evidence 804(b)(3). The case is United States v. Lozado.

Rule 804(b)(3) allows for the admission of hearsay statements against penal interest made by unavailable witnesses. To be admissible, a statement must be one that: (1) "a reasonable person in the declarant's position would have made only if the person believed it to be true;" and (2) "is supported by corroborating circumstances that clearly indicate its trustworthiness."
In Lozado, the defendant sought to introduce a statement his brother-in-law, Farris, made to officers after officers found ammunition in Lozado's vehicle. In the statement, Farris told officers that the ammunition was his, although he got most of the details about the ammunition (and other things) wrong. Farris also admitted that he was an illegal drug user, but continually told officers that he had done nothing wrong (it is, of course, illegal for a drug user to possess a firearm under 18 USC 922(g)(3)). Farris's statement actually contradicted Lozado's; Lozado also claimed ownership of the ammunition in the vehicle.  Farris was unavailable at Lozado's trial because he asserted his Fifth Amendment right to remain silent. But the district court excluded the hearsay statements. Lozado was convicted and sentenced to a whopping 235 months' imprisonment for his possession of ammunition.
The Tenth Circuit affirmed in an exegesis on Rule 804(b)(3). The Court addressed both prongs of the above-mentioned test, dwelling on the first one for an excruciating long time. But we wonder why. The much shorter analysis on corroboration appears to suffice. The district court found the statements uncorroborated. Farris's story did not mesh either with the facts or Lozado's own admission that the ammunition was his. And Farris was Lozado's brother-in-law.
With that said, we note some frustration with this requirement of corroboration on such a key piece of evidence. Farris's statement was extremely important to Lozado's defense. It seems to us that the credibility of the statement should have been left for the jury to decide. Or give immunity to Farris and allow him to testify (an admittedly unthinkable idea).
The Court's discussion on the first prong is not an easy read. There is a debate on whether the "reasonable person" test is objective or subjective, even though "reasonable person" tests are, as far as we know, defined as objective tests. The Court tries to reach the opposite conclusion, straining to interpret a declarant's "actual" beliefs on the inculpatory nature of the statements as relevant to the reasonable person analysis, but the cases it cites appear largely inapposite and the quotes pulled from those decisions are seemingly taken out of context. In any event, even assuming the Court nailed its analysis, the oddity is that, following it, the Court concedes that the record is unclear as to whether Farris subjectively believed that his statements were inculpatory. So we think all of this is dicta. Ultimately, the Court concludes that the district court did not abuse its discretion when it held that a reasonable person would not have believed Farris's statements were against his penal interest. Apparently, the district court thought charges under 922(g)(3) rare, and defense counsel admitted that it did not even know 922(g)(3) existed. The Court says that it does not rely on these things in making its ultimate determination. But it gives no other reasons, other than Lozado had the burden of proof and he did nothing to meet it (amazingly, it took 21 pages to say this).
Whatever the state of the law on Rule 804(b)(3) prior to this decision, it just got a whole lot murkier.    

Monday, January 26, 2015

U.S. v. Vann Part II: Experts and Closing Arguments

Yesterday, we blogged about two of the four issues addressed in United States v. Vann. We wrap up with the other two issues today. We'll have to tell you a bit about the facts first (something we did not have to do yesterday).
Rayvell Vann flew to Los Angeles, then decided to take the train back to Kansas City. Two hours prior to departure, he bought a ticket. A confidential source tipped off law enforcement "about the unusual circumstances of Vann's Amtrak reservation." The train stopped in Albuquerque. A DEA agent boarded, conversed with Vann, then asked to search his bags. Vann consented. The officer located an "out-of-place large pink gift box." Somehow, this find led Vann to admit that he was transporting codeine and painkillers. The officer arrested Vann and got a search warrant for the box. Aside from the codeine and painkillers, the box also contained roughly 200 grams of PCP. Vann admitted that he bought PCP in Los Angeles to sell in Nebraska, but claimed that he mailed the PCP and had no idea that the box also contained PCP. A jury found otherwise. Two evidentiary challenges on appeal fell on deaf ears:
  1. Expert Testimony on Drug Trafficking
At trial, a DEA agent testified as an expert in drug trafficking. This is unfortunately common practice these days. Vann actually conceded that the agent was an expert, but thought his testimony unreliable, particularly his opinion testimony that "PCP wholesalers do not typically package PCP for buyers." This testimony inferred that Vann himself packaged the PCP.
We pause to note some confusion with all of this. The PCP was found in a large pink gift box. How it got there was an important question in light of Vann's defense. And remember, Vann admitted that he knew of the other items in the pink gift box. Without knowing exactly what the agent testified to, it is nearly impossible to understand this decision. Was there "expert testimony" that codeine and pain killers were not distributed in large pink gift boxes? Or just "expert testimony" that a PCP wholesaler would not package PCP in a large pink gift box? How is PCP packaged?
The decision is just a smattering of unspecific statements about the agent's history and experience with drug interdictions, followed by generalized conclusions on the agent's reliability.
We have no idea what this opinion means moving forward, but it cannot be a good thing. We can envision the government interpreting this decision to allow agents to testify to anything under the guise of "expert testimony on drug trafficking." Indeed, the Court noted a recent case limiting such testimony, but called that case "the exception not the rule." We would encourage you to find some limiting principle in this decision if you have a similar issue (but we are unsure exactly what the limiting principle would be).

    2.  Prosecutorial Misconduct

On appeal, Vann alleged that certain statements made by the prosecutor were improper. He did not object below, thus review was only for plain error. The Court found no error at all.
The government argued that Vann could have "without incident walked on a plane with codeine and the painkillers," and so he must have took the train because of the PCP. But Vann noted that the codeine bottles were nameless, and the agent/expert only testified that one could take on a plane a bottle of codeine pills that had a name on it. So the government's argument misstated its own evidence. The agent's testimony also indicated that he had intercepted codeine cough syrup on trains, and Vann thought this testimony undermined the government's codeine-on-a-plane theory.
Again, this decision leaves us scratching our heads. The Court talks about circumstantial evidence and how the government's argument was proper "lawyering" based on "reasonable inferences." We think what the Court meant is that the government's argument was not very good, but that does not mean that it was improper. This makes some sense. But the decision is too amorphous to fully understand.
Vann's final complaint had to do with the government's assertion that Vann's "reticent reaction" when the agent's found the PCP was common of dealers, not low-level drug mules. The problem with this comment was that the government never presented any evidence on this "reticient reaction." The Tenth Circuit brushed this aside, finding that the comments were in reference to Vann's "reaction and demeanor when he was arrested." With that conclusion, we are now completely lost, considering that the government conceded it failed to introduce evidence of this reaction at trial.

In the end, we wish we could provide more guidance on this decision, but we cannot. Let's hope that it fades away.  

Sunday, January 25, 2015

U.S. v. Vann Part I: Batson and Faretta

The Tenth Circuit published United States v. Vann the other week. The opinion is 34 pages long and addresses four issues (the defendant lost all of them). We'll deal with two of the issues today.
  1. Batson Challenge
The government used a preemptory strike on the lone African-American on the venire. So the defendant raised a Batson challenge (this is the Supreme Court decision that holds that prospective jurors may not be stricken based solely on their race). The government denied that it struck the person based on race. Instead, the prospective juror did not fill out the jury questionnaire ("there's no indication that he has any type of family or any type of job"). The government took this to mean that the prospective juror was uneducated. Oh, and the government also thought that the person appeared "dazed and disengaged" during voir dire. Finding these reasons sufficient, the district court immediately denied the defendant's challenge. Defense counsel wanted to respond, however, so the court allowed a response, then denied the challenge. After trial, in a motion for new trial, the defendant addressed the Batson issue anew, noting that the prospective juror actually had some college education, whereas one of the actual jurors was uneducated. In response, the district court gave a more detailed reason for denying the challenge (but not much more).  
On appeal, the defendant focused his complaint on the brevity of the district court's denial, rather than the appropriateness of it. In other words, the defendant thought the district court should have said more when it denied the challenge. The Tenth Circuit was unimpressed, essentially holding that a district court need not say much of anything when denying a Batson challenge. In a footnote, the Court acknowledged a likely split in the Circuits on this issue, as other courts of appeals require explicit factual findings when ruling on a Batson challenge. Perhaps the Supreme Court will take this case to resolve the conflict in the Circuits.
The Court criticized defense counsel on a number of points, including its failure to make all of its arguments concomitant with the challenge and its failure to respond directly to all of the government's "race-neutral" reasons at the time those reasons were offered. The Court was particularly unimpressed with counsel's motion for new trial, where "with the benefit of hindsight" counsel  "constructed a rebuttal" of the government's reasons. The Court suggested that the challenge should have been "renewed" once the jury was comprised. This is tough criticism considering the practical realities of picking a jury in federal court. But it suffices to say that Batson arguments in motions for new trials might not be a particularly good idea moving forward.

2. Self-Representation at Sentencing

We'll skip to the last issue because this is getting long. That issue is somewhat straightforward. The defendant elected to represent himself at sentencing, which is his constitutional right to do so. Yet, on appeal, he asserted that the district court failed to advise him properly on the risks of self-representation. The government actually conceded the point, but asserted that a Faretta inquiry prior to trial sufficed to put the defendant on notice of the risks associated with self-representation. This seems like a stretch to us. That inquiry took place three months prior, and it involved trial, not sentencing. We are fairly certain the two are different. Yet, the Court actually bought this argument. It noted that the defendant pointed "to no case holding that an earlier, in-depth Faretta hearing cannot satisfy" a waiver of counsel. But we wonder if the government pointed to the opposite case. If it did, the Court failed to cite it. We think the dearth of case law favors the defendant, as it suggests that this type of error is simply not committed by district courts. We understand the frustration with a defendant's inconsistent arguments (I don't want an attorney, wait, I should have had an attorney), but a Faretta inquiry is a fairly simple thing. It would have been nice had the Court noticed the district court's error, vacated the sentence to correct it, and remanded for resentencing, instead of trying to justify the error on an analysis of how many cases the defendant cited (or did not cite). This sounds like another cert. worthy issue to us.

Saturday, January 24, 2015

Community Caretaking and the Fourth Amendment

The Tenth Circuit published United States v. Gilmore last week.
Andre Gilmore went to the National Western Stock Show in Denver. According to others, Gilmore was "staggering and appeared intoxicated," "staggering or swerving," "very disoriented," "out of it," "staring blankly into the air, having difficulty focusing, walking in a meandering, unsteady fashion," and "a candidate for protective custody due to his apparent level of intoxication." So officers approached him and asked questions, but Gilmore either did not answer or mumbled something incoherent. Officers then asked if he had any weapons, but Gilmore did not answer, so officers frisked him. He had a gun (of course he had a gun). He was a felon as well, so the case went federal. Gilmore filed a motion to suppress. It was denied. The Tenth Circuit affirmed.

The decision does not turn on reasonable suspicion to believe that Mr. Gilmore was armed and dangerous, the standard justification for a frisk. Instead, the Court determined that the officers had probable cause to believe that Gilmore was a danger to himself. In support, the Tenth Circuit cited a string of cases involving seizures justified via a community caretaking justification. One case actually holds that officers, acting as community caretakers, can seize a drunk person so long as the officers have probable cause to believe the person might harm himself or others.
What is interesting about this case, however, is that the Court upholds a search, not a seizure, based on the community caretaking rationale. That seems a significant step to us. The Supreme Court has often said that searches (especially of one's person) are much more serious infringements than seizures. But we might be alone because Gilmore actually conceded that probable cause that he was a danger to himself meant probable cause to search (not just seize). That concession moots our concern for this case (but it might be wise not to concede this point in future cases).
The remainder of the opinion is a recitation as to why the officers had probable cause to believe that Gilmore was a danger to himself. We will not reiterate all of it, but the bottom line is that Gilmore appeared extremely drunk and in need of care.