Monday, July 13, 2020

Tenth Circuit Breviaries

ICE holds & pretrial release

The Bail Reform Act does not preclude removal under the Immigration and Nationality Act. And "the government does not need to make a choice between a criminal prosecution or removal." Thus, a district court that releases a person before trial in a criminal case is not required (or, it seems, even authorized) to order ICE not to remove that person during the period of pretrial release. So said the Tenth Circuit in United States v. Barrera-Landa.

Fourth Amendment

Anthony Kapinski shot and killed two other men during a fracas in a crowded parking lot, and then fled. The investigating detective interviewed eyewitnesses and reviewed surveillance videos of the event. The detective secured a warrant for Mr. Kapinski's arrest by way of an affidavit that did not mention the surveillance videos. Those videos ultimately supported Mr. Kapinski's claim of self defense, and he was acquitted at trial. He sued the detective and the city for false arrest and malicious prosecution. The district court granted the detective summary judgment. Mr. Kapinski appealed.

The Tenth Circuit affirmed in Kapinski v. City of Albuquerque. The Court held that the detective's omission of any mention of the videos in the search-warrant affidavit was not material. Even with the videos, the affidavit provided probable cause. And there was insufficient evidence that the omission was reckless, especially in light of the detective's inclusion of other self-defense-supporting facts in the affidavit.

Conspiracy

In United States v. Wyatt, the Tenth Circuit reversed Mr. Wyatt's two convictions for conspiracy to sell guns without a license, because the district court failed to instruct the jury that any conspiracy had to be wilful, that is, that the conspirators had to know that what they had agreed to do was unlawful. But the Court rejected Mr. Wyatt's argument that the evidence was insufficient to prove the charged conspiracies.

ACCA predicate offenses

In United States v. Cantu, the Tenth Circuit held that Mr. Cantu's prior convictions for Oklahoma drug offenses were not ACCA predicates. This was because Oklahoma defines "controlled dangerous substances" more broadly than the ACCA defines controlled substances. The Tenth Circuit rejected the government's argument that the Oklahoma statute is divisible as to each controlled substance. The takeaway? First, read Cantu to learn how divisibility works. Second, always review the statutes underlying your client's prior drug convictions. If, at the time of your client's prior offense, those statutes covered drugs not covered by federal law, you may have a good argument that your client's prior conviction is not a sentence-enhancement predicate.

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