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.

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