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.