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).

Thursday, September 19, 2019

Playpen dissent: good faith doesn't apply where agents "deliberately or recklessly misled the magistrate"

The majority opinion in United States v. Taylor, out of the 11th Circuit, joins a chorus. It finds that a warrant related to the Playpen child-pornography investigation exceeded the magistrate judge’s jurisdiction under Federal Rule of Criminal Procedure 41(b) (since amended), but declines to suppress any evidence under the good-faith exception to the exclusionary rule. Ten other courts of appeal have reached a similar result. The notable part is Judge Tjoflat's dissent, which concludes that the good-faith exception cannot apply because the FBI agents "deliberately or recklessly misled the magistrate" in the warrant application.

If you’re not familiar with the investigation, Playpen was a child-pornography-distribution site. The FBI arrested the site administrator then covertly continued operating the site from a server in Virginia. To snare users, the FBI employed the Network Investigative Technique, or “NIT,” malware. The malware piggybacked on downloads from the site, invaded the host computer, and forced the computer to send its IP address and other information back to the FBI. The FBI could then identify the user. To deploy the NIT via the Playpen site, FBI agents submitted a search-warrant application to a magistrate judge in the Eastern District of Virginia. The warrant authorized transmission of the NIT from the site, which would then conduct digital searches of each user's computer.

The dissent concludes that the officers knew or should have known of a jurisdictional problem with the warrant, which sought to conduct searches in dozens of districts outside the judge's authority. But the warrant application falsely and repeatedly told the magistrate judge that the searches would take place in the district and "buried" the implication that most searches would in fact occur in other districts. Because the agents at least recklessly misled the magistrate judge by obfuscating the jurisdictional issue, the dissent would not apply good faith. The majority's approach, says the dissent, "essentially gives officials permission to try to hoodwink magistrates: they can make false statements to the court so long as they include enough information to uncover their chicanery. If the magistrate fails to spot the issue, officials can cloak themselves in good faith reliance and execute the warrant without fear of suppression."

Multiple Playpen cases are pending or probably will be pending on petitions for certiorari to the Supreme Court. Will one judge’s dissent persuade the Court that eleven circuits have gotten this wrong?

Sunday, September 15, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Image result for medication"Take prescribed medication as directed"

This stock condition of supervised release got the axe last week from the Tenth Circuit in United States v. Malone:

We consequently take this opportunity to make it clear that this condition, on its face, is an impermissible infringement into a defendant’s significant liberty interests without the justifying support of particularized findings.
* * *
Probation offices and courts in this circuit must be precise and discerning in their imposition of such conditions and may only include a broad mandate to ‘take prescribed medication as directed’ when it is accompanied by particularized findings that justify it.
Multiplicity of child-pornography charges

In United States v. Elliott, the Tenth Circuit held that 18 U.S.C. § 2252A(a)(5)(B) (the child-pornography statute) precludes “distinct charges for each electronic device or medium simultaneously possessed.” In other words, five charges for possessing child pornography on five devices, in the same place, at the same time, violates the rule against multiplicity. For purposes of this analysis, possession of a Dropbox account is treated as found not where Dropbox’s servers are located, but “in the same location as the device from which it is accessed.”

Thursday, September 12, 2019

Officer testimony about pretextual stops leads to suppression

The lesson from the suppression order in United States v. Coleman, No. 2:18-cr-00219, 2019 WL 4262506 (D. Nev. Sept. 9, 2019) might be: put the officer on the stand. In this case, the officer testified about his unit's practice of using traffic stops to search suspected gang members.

Officers from the Las Vegas "violent crime" or "vc" unit stopped Coleman for driving with high beams on. Officer Ostorga got his identification, asked about his criminal history (prior convictions for robbery, battery and weapons possession), and asked him about gang affiliation. Ostorga remarked that "I am just going to keep asking you until you tell me." Coleman said he had previously been a member of a gang. The officers found no outstanding warrants but did discover that Coleman was on federal supervised release. They decided to contact the probation officer to see if they could get permission to search the car, which was apparently not successful. After remarking that he was not concerned about his safety, Ostorga ordered Coleman out of the car anyway. He frisked Coleman and found nothing. He ordered Coleman to stand in front of the patrol car and visibly inspected Coleman's car with a flashlight, and found nothing. He then asked "Be cool if I search it?" and Coleman did not respond. Ostorga asked again "What's up? You okay if I search it?" Coleman said yes. Eventually Ostorga removed a panel from interior and found a handgun.

The district court suppressed the gun. The court found that Ostorga impermissibly extended the traffic stop by ordering Coleman out of the car, not for any safety reason or traffic-stop purpose, but to continue to search for drugs or guns. In fact, the court noted, searching the car was the officer's purpose from the beginning of the stop, consistent with the vc unit's use of traffic stops for "proactively searching for guns, drugs, and other gang-related contraband." The court also found that the consent was not voluntary, since Coleman had been frisked and searched, was out of his car with his hands on the hood of the patrol car, the officers retained his identification, and Ostorga asked twice for permission after Coleman tried to avoid responding.

Evidence suppressed.




Sunday, September 8, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment: reasonable mistake of law

In United States v. Romero, the Tenth Circuit held that a police officer did not have probable cause to arrest Mr. Romero for obstructing an officer under a state law, as that law has been interpreted by the courts.

Image result for reasonable mistakeThe Tenth Circuit further held that any mistake of law by the arresting officer was unreasonable. A couple of highlights:

First, recall that the Supreme Court held that reasonable suspicion may rest on a mistake of law in Heien v. North Carolina. As the Tenth Circuit pointed out in Romero, the Tenth Circuit has yet to decide whether Heien applies to probable-cause determinations (the Court merely assumed this point without deciding it in Romero).

Second, an officer's mistake of law must be reasonable. Here, the law at issue had been interpreted several times, and the officer could not have reasonably mistaken it as applicable to Mr. Romero's conduct.

Jury instructions on lesser-included-offenses

In United States v. Antonio, the Tenth Circuit found no error in the district court's step-down instructions to only consider involuntary manslaughter if the jury did not unanimously find the defendant guilty of second-degree murder.

And the Tenth Circuit found no error in the district court's refusal to instruct the jury to consider “the boundary which separates the two crimes of murder and manslaughter.”

 Magistrates: authority to accept guilty pleas?

The Tenth Circuit has long held that "federal magistrate judges can accept and enter guilty pleas in criminal proceedings where the parties have consented to appearing before the magistrate judge." But other circuits disagree when it comes to felony pleas, and for good reasons. In United States v. Garcia, Chief Judge Tymkovich, writing for the panel majority, acknowledged those reasons and rang the certiorari bell: "Regardless of how we, as a circuit, continue to handle these matters, the Supreme Court will have the final word." Stay tuned . . . .

Indian Country

Want to learn more about subject matter jurisdiction and Indian Country? Read United States v. Antonio (finding evidence of territorial jurisdiction sufficient, and no procedural error).

Crimes of violence; 18 U.S.C. § 924(c); 28 U.S.C. §2255 timeliness; actual innocence

From United States v. Bowen:

"In short, we hold that United States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is void for vagueness, created a new substantive rule that is retroactively applicable on collateral review, and we conclude that Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A). Therefore, Bowen is actually innocent of 18 U.S.C. § 924(c)(1). The parties have agreed in this case that, if Bowen is actually innocent, his § 2255 motion is timely. Because Bowen is entitled to relief under § 2255, we REVERSE the district court’s dismissal of Bowen’s § 2255 motion and REMAND with instructions to VACATE his § 924(c)(1) conviction."

Monday, September 2, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

A sentence increase after the defendant complains

In United States v. Wallace (unpublished), the district court sentenced Mr. Wallace to 6 months' imprisonment for supervised release violations, saying, "I'm looking forward to when you get out because I want to see what you can do." Mr. Wallace interrupted (more than once) as the court continued, and complained that the court was setting him up for failure. The district court warned: "we can revisit my sentence"; Mr. Wallace replied: "let's revisit it." The district court took a 10-minute recess and came back and resentenced Mr. Wallace to 10 months' imprisonment.

On appeal, counsel filed an Anders brief and the Tenth Circuit held that (1) the district court did not lose jurisdiction over Mr. Wallace's sentence between the time of its initial announcement and its revised announcement; and (2) "[w]e see no reason to interpret the within-guidelines sentence as a punishment for interrupting instead of a reasonable sentence in line with the government’s recommendation." Appeal dismissed.

USSG § 2G1.1(b)(1) (4-level enhancement for coercive behavior)

"[F]or the purpose of applying Guideline § 2G1.1(b)(1), the defendant must have coerced the Victim as part of the offense, and . . . the language 'occurs as part of the offense' includes any conduct for which the defendant is accountable under Guideline § 1B1.3 (Relevant Conduct)." United States v. Sweargin.


The right to a § 2255 hearing to prove counsel's failure to consult about an appeal

In United States v. Herring, the Tenth Circuit held that the district court erred in denying, without an evidentiary hearing, Mr. Herring's claim that his trial counsel's failure to consult with Mr. Herring about an appeal constituted ineffective assistance of counsel.

Mr. Herring alleged that when he told counsel that he was interested in appealing, counsel responded that he (counsel) did not do appellate work, and that Mr. Herring would have to find new counsel. If true, this would be deficient performance:

"Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case."

Case remanded for an evidentiary hearing.

A complicated § 2254 case

Read Harmon v. Sharp (affirming denial of § 2254 relief in Oklahoma capital case) to learn more about:

  • State procedural bars/cause & prejudice (especially out of Oklahoma).
  • "Separate counsel" for purposes of raising an IAC claim.
  • De novo review in § 2254 cases.
  • Cumulative error.
See also the concurring opinions for an interesting discussion of waiver/no-review versus forfeiture/plain-error-review in AEDPA appeals.

Thursday, August 29, 2019

D.C. Circuit to government: if you want to use the witness's statements, don't deport the witness

Image result for unavailable witnessBefore the government may present an absent witness's testimonial statements at trial, it must make two independent showings: (1) unavailability, and (2) a prior opportunity for confrontation.

In United States v. Burden, the government failed to show that a witness the government had deposed and then deported was unavailable:

"In a case such as this one, in which the government knew or should have known of the potential need for the witness’s testimony before he was deported, the government’s duty to make good-faith, reasonable efforts to ensure the witness’s presence arises before the witness leaves the United States."

* * *
"Before his deportation, the government did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures."

So sayeth the D.C. Circuit. Conviction reversed.

Sunday, August 25, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit . . .

Haymond remedy

18 U.S.C. ' 3583(k) provides for mandatory revocation and enhanced prison terms for sex offenders who violate the terms of their supervised release. The statute's provisions are triggered by judicial (not jury) factfinding by a preponderance of evidence (not evidence beyond a reasonable doubt). We now know that these provisions are unconstitutional. That's what the Supreme Court told us earlier this summer when it decided United States v. Haymond. But what's the remedy for this problem? Is it to strike that portion of the statute, nixing the enhancement entirely? Or to hold a jury trial if the government wishes to pursue the enhancement? And what would that jury trial look like? The Supreme Court sent the case back to the Tenth Circuit to decide the remedy question.

Last week, the Tenth Circuit decided not to decide the remedy question . . . at least not in Mr. Haymond's case. And that's because (1) the government waived any claim that a jury trial is authorized and would remedy the statute's constitutional problems; and (2) any remedy is now moot as to Mr. Haymond, who was already resentenced to time served.

And so. Going forward. Object to the enhancement, and argue that the only plausible remedy is to strike that portion of the statute. There are no jury-trial provisions in Section 3583 or anywhere else for revocations of supervised release. The enhancement is not enforceable.

Materiality of false statements

A veteran's lies to the VA in an effort to get undeserved benefits are material where they may be (even if they're not) the sole basis for an eligibility finding. And thus the Tenth Circuit affirmed the defendant's false-statements conviction in United States v. Williams.

In Williams, the Tenth Circuit reminds us that "[a] false statement can be material regardless of its influence on the decisionmaker and can also be material even if the decisionmaker had already arrived at her conclusion before the statement is made."

FRE 404(b) evidence v. "intrinsic" evidence v. FRE 403

The Williams Court held that Mr. Williams's prior false statements were admissible as "intrinsic to the charge," and therefore their admission was not limited by Fed. R. Evid. 404(b). But the Court also noted that even intrinsic evidence may be excluded "if it upsets the balancing test of Rule 403."

Preservation of objections

More from Williams: Once the trial court definitively ruled on defense counsel's motion in limine before trial, counsel was not required to re-raise the objections in that motion at trial. But counsel may only be relieved of the contemporaneous-objection requirement when the issue at hand is (1) fairly presented pretrial; (2) capable of a final decision pretrial; and (3) ruled on unequivocally by the judge.


Thursday, August 22, 2019

D. Kan. Judge: Statute criminalizing encouraging unlawful alien is unconstitutionally overbroad

8 U.S.C. § 1324(a)(1)(A)(iv) provides criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”

Image result for grandma coloring pageLast December, the Ninth Circuit held this section unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression, including “a loving grandmother who urges her grandson to overstay his visa.” United States v. Sineneng-Smith, 910 F.3d 461, 483 (9th Cir. 2019) (cert. pet. filed 07/12/2019).
The Tenth Circuit has yet to address this section. But this week, D. Kan. Judge Murguia relied on Sineneng-Smith to vacate two jury convictions under this section. United States v. Hernandez-Calvillo, D. Kan. No. 16-cr-20097-05 (Order of Dismissal filed 08/21/19); United States v. Papalotzi, D. Kan. No. 16-cr-20097-06 (same).
The government may well appeal. In the meantime, if your client has been charged under this section, move to dismiss, and consider moving to vacate any already-entered plea.

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 be 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:

Postconviction

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."

Sunday, July 21, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Waiver of Right to Counsel

When a person charged with a crime seeks to proceed pro se, the district court must ensure that the person's waiver of counsel is knowing and intelligent. Among other things, the district court must properly warn the person of the need to adhere to federal procedural and evidentiary rules. In United States v. Hansen, a tax-crimes prosecution against a sovereign citizen, the district court failed to do just this, rendering Mr. Hansen's waiver inadequate. Convictions and sentences vacated.

Fourth Amendment

In United States v. Pittman (unpublished), the Tenth Circuit affirmed the district court's denial of Mr. Pittman's motion to suppress, reminding us along the way that the Federal Rules of Evidence do not apply at a suppression hearing.

Thursday, July 18, 2019

"Sloppy study of the laws" leads to suppression

Image result for standing by running carWe learned a few years ago in Heien v. North Carolina, 574 U.S. 54 (2014), that the exclusionary rule does not apply to the fruit of a police seizure based on an objectively reasonable mistake of law.

But what about an earnestly believed mistake of law?

If that belief is not objectively reasonable, then it cannot support the seizure.

So held D. Kan. Judge Teeter in a recent order suppressing the fruit of a traffic stop for leaving a running car "unattended." "Unattended" as used in the Topeka ordinance at issue does not apply to a car that is simply "unoccupied" while its driver remains nearby. The seizing officer's earnest belief to the contrary was not reasonable. Applying the exclusionary rule in this circumstance will deter "a sloppy study of the laws" that officers are duty-bound to enforce.

Evidence suppressed.

Sunday, July 14, 2019

Tenth Circuit Breviaries

Fourth Amendment

When and for how long may a passenger be detained during a traffic stop? "So long as law enforcement retains the ‘need to control the scene’—here, for at least the duration of a consent search of the vehicle—the longstanding interest in officer safety outweighs any additional intrusion created by investigatory detention to a passenger’s personal liberty." That's the lesson of United States v. Gurule. The Gurule Court also held that law enforcement's frisk of Mr. Gurule during this traffic stop was reasonable.

Conditions of Release

A person may move to amend the conditions of his or her pretrial release under 18 U.S.C.  § 3145(a)(2). Fed. R. Crim. P. 59(a)'s framework (for appeals from matters referred to a magistrate) does not apply to this type of motion. And thus, in United States v. Doby, the Tenth Circuit held that the district court erred in denying Mr. Doby's Section 3145 motion to amend as untimely under Rule 59.

Predicate Offenses

An Oklahoma felony conviction for conspiracy to shoot with intent to kill is not an ACCA predicate, despite its inclusion of an overt-act element. United States v. Wartson (unpublished). Read Wartson for a good discussion of how the categorical approach works under the ACCA's element-of-force clause (the predicate offense must do more than merely involve the use or threatened use of force, it must include an element of force).

Federal Expungements

Federal expungements of arrests, acquittals, and convictions, though rare, do exist, at least for now in the Tenth Circuit. Want to know more? Read United States v. Trzaska (unpublished).

Thursday, July 11, 2019

Is your "alien" client really a US citizen?

Image result for citizenshipFederal records indicate that between 2007 and 2015, more than 1,500 US citizens spent time in immigration detention. And those are the just the numbers acknowledged by the government. Is your unlawful entry/reentry client really a US citizen? Read this article about citizens illegally detained by ICE, and get inspired to challenge the government's case for alienage.

Remember: Challenging alienage is not as complicated as trying to undo an underlying removal order. Alienage is an essential element that the government is required to prove. Demand exculpatory discovery regarding this essential element. Make the government prove this element at trial.

Sunday, July 7, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment

Image result for ankle monitorIn United States v. Mathews, the Tenth Circuit held that, under the totality of circumstances, ATF investigators reasonably searched Mr. Mathews’s historical GPS data (collected from his ankle monitor while he was under a state community supervision order). This was a legal question that the district court appropriately resolved without an evidentiary hearing. Read this case for a fuller understanding of the law regarding warrantless searches involving people on state parole/probation.

FRE 702/Daubert

Mathews also reminded us that “Daubert does not mandate an evidentiary hearing.” And that if we want to preserve a challenge to the reliability of an expert’s opinions, conclusions, and methodologies, we must do more than simply challenge the expert’s credentials. Specificity in making Daubert objections is key to appellate review. 

Fourteenth Amendment/Due Process

In case you didn't know, "[e]xposing a person's naked body involuntarily is a severe invasion of personal privacy" implicating due-process concerns. Consequently, the district court properly denied qualified immunity to six deputy sheriffs who walked a man in their custody through the public area of a hospital completely unclothed but for a pair of orange mittens. So said the Tenth Circuit in Colbruno v. Kessler, a § 1983 case.