Sunday, March 22, 2020

Tenth Circuit Breviaries

We're finally catching up on Tenth Circuit criminal cases decided in the last few weeks:

Fourth Amendment/Fifth Amendment due process

In United States v. Wagner, the Tenth Circuit held that information that an internet user had accessed child pornography six months ago was not too stale to support a search warrant for the residence associated with the user's IP address. The Court also rejected Mr. Wagner's particularity challenge to the warrant.

The Wagner Court also held that even if a magistrate's earlier NIT warrant for Playpen's servers was invalid (for various reasons), FBI agents executed the warrant in good faith (reaffirming Workman). And the agents' operation of the Playpen child-pornography website did not rise to the level of outrageous governmental conduct necessary to support dismissal of the indictment.

Fifth Amendment right against self-incrimination

More from Wagner: the FBI's interview of Mr. Wagner during execution of the search warrant at his house was noncustodial, and his statements to the agents were voluntary. So concluded the Tenth Circuit.

Exclusion of hearsay/motion for new trial

Trial practitioners take note: In Wagner, trial counsel (1) unsuccessfully sought to cross-examine a government witness about out-of-court statements that had previously been admitted (the district court sustained the government's hearsay objection); and then counsel (2) unsuccessfully moved for a new trial after Mr. Wagner's conviction, arguing in part that the district court's restriction of his cross-examination violated his due-process rights. This was preserved trial error. And it was argued as trial error on appeal. And yet the Tenth Circuit analyzed it as an appeal from the district court's denial of the motion for new trial--triggering a tougher appellate standard, which the Tenth Circuit held Mr. Wagner did not meet. Would he have been in better appellate shape had he not moved for a new trial?

Discuss amongst yourselves.

Sufficiency of evidence of child pornography

Finally in Wagner, the Tenth Circuit held that the evidence was sufficient to prove that Mr. Wagner knowingly received and possessed child pornography.

Sufficiency of evidence of obstruction of justice/attempt to kill witness

In United States v. Chatman, the Tenth Circuit reversed Mr. Chatman's conviction for attempting to kill a witness as well an accompanying 18 U.S.C. 924(c) conviction. Given the unique facts suggesting frustration, retaliation, or attempted "suicide-by-cop," the government failed to prove that Mr. Chatman's exchange of gunfire with a police officer was intended to prevent the officer from communicating the possible commission of a federal offense (Mr. Chatman's unlawful gun possession) to a federal officer or judge.

8 U.S.C. 1326: unlawful reentry

In United States v. Lira-Ramirez, the Tenth Circuit considered newly unearthed statutory history, but ultimately stood by its earlier decisions holding that notices to appear for removal proceedings are not jurisdictional; consequently, an unlawful reentry conviction may be predicated on an earlier removal that followed from a defective notice to appear.

Pleas and magistrate judges

Do magistrate judges have authority to accept guilty pleas and adjudicate the defendant guilty of a felony if the parties consent? Yes (and even if they didn't, that limit would not implicate jurisdiction), according to the Tenth Circuit in United States v. Finnesy.

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