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.