Wednesday, September 9, 2020

Tenth Circuit Breviaries

Recently at the Tenth Circuit:

Fourth Amendment

May officers stop a car for a civil (as opposed to a criminal) traffic infraction? Is probable cause (as opposed to reasonable suspicion) required to support such a stop? Yes, as to the first question; maybe, as to the second. That's my reading of United States v. Meadows. In Meadows, the Tenth Circuit found nothing special about a Utah equipment-violation statute that would take it out of the running for traffic stops: "Because we find that officers may initiate a traffic stop based on probable cause of a Utah equipment violation—even assuming Utah decriminalized that violation—the traffic stop here was reasonable." (Mr. Meadows did not contest the existence of probable cause.) 

If you have been following recent critiques of the qualified-immunity doctrine as applied in civil suits involving police misconduct, take a look at Judge Lucero's dissent from the denial of rehearing en banc in Cox v. Wilson: "Because the panel decision in this case exponentially expands in this circuit the judicially created doctrine of qualified immunity into an all-purpose, no-default, use-atany-time defense against asserted police misconduct, and because it clearly demonstrates so much of what is wrong with qualified immunity, I requested that my colleagues review the panel decision en banc. From the denial of that request, I respectfully dissent" (joined by Judge Phillips).

Using a taser without adequate warning against a misdemeanant who has ceased actively resisting arrest is unreasonable. Emmett v. Armstrong (reversing grant of qualified immunity in excessive-force suit).


In United States v. Mobley, the Tenth Circuit found an international-parental-kidnapping indictment sufficiently specific where it included all elements of the charged offenses, even if it did not include names, locations, or means.

Brandishing a firearm, 18 U.S.C. § 924(c)

Evidence that an accomplice brandished a firearm was sufficient to sustain this aider/abettor's 924(c) conviction. United States v. Bailey.

Extortionate communications & kidnapping, 18 U.S.C. § 875(b)

"Kidnapping" under Section 875(b) does not encompass international parental kidnapping (and threatening that kind of kidnapping therefore cannot serve as the basis for an extortionate-communications conviction). So said the Tenth Circuit in Mobley. Read Mobley for a history of federal kidnapping statutes from baby Lindbergh to the present.

Judicial recusal, 28 U.S.C. § 455

In Mobley, the Tenth Circuit also held that the sentencing judge's email to the defendant's mother about sentencing did not require recusal.

Sentencing: Use of violence, USSG 2D1.1(d)(2)

In United States v. Zuarte-Suarez, two out of three Tenth Circuit panel judges agreed in an unpublished order and judgment that the district court did not plainly err when it enhanced Ms. Zuarte-Suarez's methamphetamine-trafficking sentence for use-of-violence. Judge Phillips published his dissent "because of the importance of relevant conduct in federal sentencings and the need for rulings explaining how it works. Unwarranted Guidelines enhancements lead to unwarranted prison time." Read both opinions in Zuarte-Suarez for competing views of what evidence and intent are necessary to establish this enhancement.

Restitution, 18 U.S.C. § 3663

No restitution was authorized in Mobley for the father's attorney's fees incurred in an effort to retrieve his children from Russia: "Section 3663 delineates specific authorizations for restitution orders and the one relied on here, subsection (b)(4), is not met by expenses that are merely 'related to' the offense. More is required: the expenses must be 'related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense[.]' § 3663(b)(4) (emphasis added)."

Criminal forfeiture

"[A] district court may base a judgment’s forfeiture amount on the value of the fraudulently obtained merchandise at the time a defendant acquired it. We further hold that a district court may not reduce or eliminate criminal forfeiture because of restitution. Finally, we reaffirm our holding that in personam money judgments representing the amount of unlawful proceeds are appropriate under the criminal forfeiture statutes." United States v. Channon.

Sex-offender registration

The Colorado Sex Offender Registration Act does not violate the Eighth Amendment or substantive due process as applied to the plaintiffs in Millard v. Camper (and the district court erred in holding otherwise).

First Step Act & Fair Sentencing Act

Read United States v. Mannie if you haven't already, and if you are representing anyone on a First Step Act motion or appeal involving the retroactive application of the Fair Sentencing Act. In Mannie, the Tenth Circuit addresses eligibility (it has nothing to do with the guidelines calculation), the right to a hearing (it's discretionary), and the standard of review on appeal (abuse of discretion).

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