Wednesday, December 2, 2020
There's a new rule in town worth getting to know. Amendments to Federal Rule of Evidence 404(b) came into effect on December 1, 2020. The new rule eliminates the need to request notice; obligates the government to articulate the purpose of the evidence noticed; and obligates the government to put its notice in writing. No more can the government claim that you got notice via evidence buried somewhere in a discovery dump. Here are the changes:
Be sure to check out the robust Advisory Committee Notes to the amendment. You can review those and other historical materials here.
Sunday, November 22, 2020
Even if the prior panel had erred, the extent of a district court’s discretion on remand is not determined by our fallibility or the district court’s satisfaction with our explanation. The court’s discretion on remand is determined by the limitations expressly imposed on it by our mandate. This court need not plumb the depths and details of an issue to preclude further argument about it on remand.On those occasions, hopefully few and far between, when this court is wrong or unclear, the district courts are not in the position to engage in error correction on remand. We have processes in place to ensure parties can have errors corrected: petitions for panel rehearings, rehearings en banc, and writs of certiorari to the United States Supreme Court. Dutch pursued these processes following Dutch I to no avail. If the mandate rule means anything, it must mean that a district court cannot disregard a specific mandate on remand because it disagrees with it or thinks it insufficiently explained.
Thursday, November 5, 2020
A Wyandotte County judge Thursday vacated the 2009 murder conviction of Olin “Pete” Coones, who says he was framed in a double shooting that was actually a murder-suicide.
After more than 12 years behind bars, Coones left the courthouse a free man.
The Wyandotte County District Attorney’s Office moved to drop the charges against Coones, now 63, after the judge found Coones received an unfair trial in the 2008 shooting deaths of Kathleen and Carl Schroll.
It is a complicated story, one expertly told in the beautifully written petition. Really, here is the opening paragraph:
Kathleen Schroll’s last scheme was her most ambitious one. Granted, her first one netted her around $30,000 in cash, a house, and a $46,000 life-insurance policy. And her second one, requiring her to falsify bank records, paid her about $11,000. But with her last scheme, Kathleen aimed to steal someone’s life.
In sum, prosecutors withheld exculpatory evidence, ignored alibi evidence, withheld information from the medical examiner, and sponsored an untrustworthy jailhouse snitch to convict Mr. Coones. The prosecution was led by WyCo assistant prosecutor Edmund “Ed” Brancart, under then-WyCo DA Jerome Gorman. The MIP explains the case more fully here.
This was the first case to go through Wyandotte County's Conviction Integrity Unit, under the supervision of current WyCo District Attorney Mark Dupree.
The winning team. Our best to Mr. Coones and his family.
Monday, November 2, 2020
Monday, October 26, 2020
Remember to review the affidavits carefully in those multi-defendant conspiracy cases. That's one lesson of Bickford v. Hensley. Deputy Hensley secured arrest warrants for 44 claimed marijuana conspirators, using a boilerplate affidavit. In Mr. Bickford's case, two accusatory paragraphs did not apply ("[t]he above named defendant assisted this conspiracy . . ."; "the above named defendant conspired . . ."). Mr. Bickford was nonetheless arrested on the warrant, and the criminal charges against him were not dismissed until more than a year later.
Mr. Bickford sued. The district court (N.D. Okla.) dismissed. The district court determined that the affidavit's boilerplate paragraphs were false with respect to Mr. Bickford, thereby invalidating the warrant. But the district court found that the deputy nonetheless had probable cause to arrest Mr. Bickford without a warrant for possessing marijuana. This finding was based on the deputy's knowledge of a single Facebook exchange a year earlier between two actual conspiracy members, during which one member stated that he'd given "Chaz" (thought to be Mr. Bickford) a "small dab," and "he got so high."
The Tenth Circuit reversed in an unpublished order & judgment. This "remotest of evidence" did not provide probable cause to arrest Mr. Bickford for possession:
First, the Facebook message between third-parties constitutes hearsay. Although the fact that hearsay evidence would be inadmissible at trial “does not make it unusable as a source of probable cause for a warrantless arrest” . . . longstanding legal principles generally consider hearsay statements to be inherently unreliable . . . . Second, the Facebook message did not mention Plaintiff by name, but merely referred to someone named “Chaz,” who Deputy Hensley thinks is Plaintiff. The lack of specific identification of Plaintiff in an uncorroborated conversation that did not even involve Plaintiff further undermines the ability of the message to establish probable cause of any offense.
One last note about Bickford. Oklahoma law generally prohibits warrantless arrests for misdemeanors such as marijuana possession unless they are committed or attempted in the arresting officer's presence. But that state-law fact did not invalidate Mr. Bickford's arrest. State law does not define the contours of the Fourth Amendment. Whether the "in the presence" rule is part of the Fourth Amendment may remain an open question in the Supreme Court, but it was a question that did not need to be answered here in the absence of probable cause.
Competency & interlocutory appeals
A competency determination is a non-final order that may not be interlocutorily appealed. United States v. Perea.
The district court did not err in refusing to instruct the jury on assault resulting in serious bodily injury in this first-degree-murder trial. Neither did it err in its admission of graphic photos. United States v. Oldman (also rejecting arguments regarding ex parte communications with the jury; spousal privilege; and ineffective assistance of counsel).
Sentencing: substantive unreasonableness
This 8-time DWI defendant's 36-month sentence for assault (a DWI accident) resulting in serious bodily injury is not substantively unreasonable. United States v. Miller.
Conditions of supervised release
Also in Miller, the Tenth Circuit held that a broad condition of supervision requiring "substance abuse testing" improperly left it up to the probation officer how many substance-abuse tests would be required. This condition conflicted with the language of 18 U.S.C. § 3583(d) (though it was not an unconstitutional delegation): "the district court must set the maximum number of non-treatment-program drug tests to which a defendant may be subjected," and cannot delegate this authority to the probation officer. Here, the district court also failed to make sufficient record findings to support the condition. Unfortunately for Mr. Miller, these errors were unpreserved, and in the end the claims did not satisfy plain-error review. Condition affirmed.
Tuesday, October 13, 2020
Fourth Amendment: warrantless entry into home to arrest
Officers have asked a confidential source to set up a buy from a man they suspect of dealing drugs. The officers decide to approach the man right before the buy and try to "flip" him on a bigger target. Upon seeing the officers, the man flees into his own home. The officers follow. They find the man inside with his arm wet up to the elbow, and a bag of methamphetamine floating in the toilet. They secure consent to search, and seize the bag from the toilet as well as more drugs and guns that they find in the house. Fourth Amendment violation? Nope. Probable cause to arrest + exigent circumstances = constitutional warrantless entry. Here, there were two exigent circumstances: the likelihood that a fleeing drug dealer is about to destroy evidence, and hot pursuit. The case is United States v. Cruz.
Fed. R. Evid. 1002: "best evidence" and transcripts of recordings as substantive evidence
In United States v. Chavez, the Tenth Circuit reversed Mr. Chavez's methamphetamine-distribution convictions because the district court erroneously admitted purported transcripts of recorded Spanish- (and some English-) language conversations for substantive purposes in lieu of (not just in addition to) the recordings themselves. A couple of takeaways:
The phrase "best evidence rule" is "somewhat of a misnomer." The rule isn't about which evidence is qualitatively best or most useful to the jury. Instead, it might be more aptly called the "original document rule."
When a party seeks to prove the contents of a recording via transcripts, the best-evidence rule is triggered, and the party must secure the admission of the original recordings themselves. There is no foreign-language exception to the rule.
Appellate lawyers should also read Chavez for a deep dive into the government's burden of persuasion on the question of nonconstitutional harmless error.
Supervised-release condition: possession of sexual materials
The district court plainly erred when it imposed a special condition of supervised release banning this child-pornography defendant from possessing "sexually oriented" or "sexually stimulating" material without first making required findings. United States v. Koch. And footnote: this condition might be unconstitutionally overbroad in any case (though that issue wasn't raised here). See, e.g., Madame Bovary.
Thursday, October 1, 2020
The First Circuit recently vacated the death sentences of Dzhokhar Tsarnaev, the 19-year-old who was convicted of the 2013 Boston Marathon bombings, due in part to juror activity on social media during jury selection. Online comments to and from a juror included:
"If you're really on jury duty, this guys got no shot in hell"
"Shud be crazy [Dzhokhar] was legit like ten feet infront of me today with his 5 or 6 team of lawyers ... can't say much else about it tho ... that's against the rules."
"Play the part so u get on the jury then send him to jail where he will be taken care of."
Of course, this juror also told the court during jury selection that his FB friends were not commenting on the trial.
It is difficult to regulate the use of social media. For some people, tweeting is like breathing--they may not always be conscious they are doing it. [Political comment deleted]. In a jury trial, this is a real concern. As Tsarnaev recognized, "jurors who do not take their oaths seriously threaten the very integrity of the judicial process." Social media can be used to research the allegations, to perpetuate inaccurate news reports [second political comment deleted], to reveal juror biases . . . the list goes on.
Proposed model instructions were recently drafted by the Judicial Conference. These are much more comprehensive and modern (no references to Blackberries or MySpace) than the 2012 version. The venire is warned, in detail, against communication or research on social media. It also recognizes the compulsion to do so, and that some people will not be able to resist: "If you feel that you cannot do this, then you cannot let yourself become a member of the jury in this case. Is there anyone who will not be able to comply with this restriction?"
The instructions go so far as to warn about potential on-line manipulation:
Finally, a word about an even newer challenge for trials such as this one–persons, entities, and even foreign governments may seek to manipulate your opinions, or your impartiality during deliberations, using the communications I’ve already discussed or using fake social media accounts. . . . .These communications may be intended to persuade you or your community on an issue, and could influence you in your service as a juror in this case. (emphasis added)
[Third political comment deleted]. The instructions cover jury selection, instructions at the beginning and end of each day, and the close of the case. Jurors are also instructed to inform the court "at the earliest opportunity" if they learn of another juror learning or sharing information outside the courtroom.
Monday, September 28, 2020
Sentencing: minor role, USSG § 3B1.2(b)
Litigating a minor-role reduction for your client? Read United States v. Delgado-Lopez. There the Tenth Circuit held that a district court considering whether to grant a minor-role reduction should not: (1) speculate about the economics of the drug-trafficking scheme; (2) consider the defendant's refusal to cooperate; or (3) fail to consider the defendant's culpability relative to other participants (unless the only evidence in support of the reduction is the defendant's testimony and the district court properly finds that testimony not credible).
Sentencing: disparities and issue preservation generally
18 U.S.C. § 3553(a)(6) obligates the district court to consider, at sentencing, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Native Americans convicted of assault in Indian country under the Major Crimes Act face higher sentences under federal law than they would under state law. Because of the Act's conferral of federal jurisdiction over certain crimes within Indian country, the Act disproportionately affects Native Americans. Can a sentencing court consider this disproportionate effect when sentencing a Native American person convicted under the Act?
Nope---at least not under Section 3553(a)(6). So said the Tenth Circuit in United States v. Begay, citing binding Circuit precedent holding that the purpose of Section 3553(a)(6) is to prevent disparities among federal defendants, period.
BUT the Tenth Circuit suggested that the disparity at issue in Begay might be relevant to other sentencing factors, or even the basis for an equal-protection argument. Alas, counsel for Mr. Begay did not sufficiently raise or argue these other bases for considering the disparity in his case. Sentence affirmed.
Sentencing: substantial risk of death or serious bodily injury, § 2K1.4(a)(1)(A)
This guideline requires an actual risk, not just an intended one. But the district court found an actual risk here, and so Mr. Ansberry's base-offense level stands. United States v. Ansberry.
Sentencing: terrorism enhancement, § 3A1.4
"[F]or a § 3A1.4 terrorism enhancement based on the defendant’s retaliation against government conduct to apply, the conduct retaliated against must objectively be government conduct." United States v. Ansberry (emphasis added) (in other words, it is not enough that the defendant subjectively believed the conduct was government conduct).
Sentencing: official victim enhancement, § 3A1.2(a)
This enhancement may only be based on "facts immediately related to the offense of conviction," and not on broader relevant conduct. United States v. Ansberry. The government charged Mr. Ansberry with using or attempting to use a weapon of mass destruction against any person or property. But Mr. Ansberry only pleaded guilty to attempting to use the WMD against property. An offense against government property does not automatically victimize government employees.
Thursday, September 24, 2020
Happy belated National Voter Registration Day. It’s hard to imagine any election more important than the one that looms just 40 days away. As we all prepare to vote, it’s important to remember that many of our pretrial clients are also eligible and want to vote,* even if in pretrial detention. But the logistics of voting from jail make it tougher for them to do so. You can help by answering their questions and providing the needed forms.
The Kansas FPD is partnering with ACLU of Kansas to get information and materials to potential voters in the jails. We are grateful that many of the Kansas jails, including CoreCivic, Shawnee, Jackson, Sedgwick, Wyandotte, and Butler have agreed to allow Voting Rights flyers (below) to be posted and have let us provide stacks of the forms used to register and to request ballots.
In order to help answer questions from your clients, below is the basic information about who is eligible to vote and when the forms to register and request a ballot must be submitted.
The general eligibility requirements are:
· U.S. citizen
· Kansas resident
· 18 years old on date of the election
· Completed terms of any felony sentence
· Not claiming eligibility to vote elsewhere/under another name
· Not excluded from voting by any court
The deadlines are:
· Register to vote: postmarked by October 13
· Request absentee ballot: received by October 27
· Vote by absentee ballot: postmarked by November 3
*See Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev., 193, 212–15 (2004) (research links pro-social activities like voting to desistence in crime; individuals interviewed about losing the right to vote express a feeling of being an “outsider” because they cannot vote; and empirical studies show some correlation between voting and lower recidivism). And kudos to Assistant Federal Public Defender Carl Folsom for finding this article and using it in a recent (and successful?) motion for early termination of supervised release.
Tuesday, September 22, 2020
Even with the uncertainty and acrimony surrounding the nomination of a new Supreme Court justice, one thing is certain: the first Monday in October is upon us, and with it the 2020 term of the Supreme Court. Below we begin a survey of cert grants.
In Torres v. Madrid, the question is this: what qualifies as a seizure under the Fourth Amendment? To resolve an entrenched circuit split, the Court granted cert to determine whether an unsuccessful attempt to use physical force is a seizure.
The question seems somewhat anodyne, but the facts are not. The New Mexico State police went to arrest the plaintiff as she got into her car early one morning. Not realizing it was the police, she believed she was the victim of a carjacking and tried to escape. Police fired some 13 shots as she drove away, striking her twice in her back. Police claimed she was driving toward them, placing them in danger, but trajectory analysis showed all shots were fired from the sides or at the rear of the vehicles. She managed to drive herself to the hospital, where she was later charged and placed under arrest. She pleaded no contest to three felonies, and then sued police for use of excessive force.
The lower court dismissed, granting qualified immunity to the police, and the Tenth Circuit affirmed. Specifically, the circuit court found that “a suspect’s continued flight after being shot by police negates a Fourth Amendment claim.” In other words, because she did not voluntarily stop for carjackers or because the police did not completely incapacitate her, law enforcement escapes any liability for shooting her in the back.
Even if Ms. Torres prevails on this seizure issue, she will still have to prove that police conduct violated “clearly established” law at the time of the conduct in 2014 to overcome qualified immunity that protects police from the consequences of their misconduct. With the increasingly loud calls for qualified immunity reform, it will be interesting to see whether the court allows qualified immunity to continue. Justice Sotomayor said in Kisela v. Hughes that qualified immunity “tells officers that they can shoot first and think later,” and "it tells the public that palpably unreasonable conduct will go unpunished.” In this case, law enforcement amici briefs complain about unduly chilling police conduct. The NAACP LDF brief counters, “Today, far too many police officers continue to draw and use guns as a means of unjustified control of African-Americans, rather than for valid law enforcement reasons. The 10th Circuit’s decision leaves these countless people without recourse.”
The case, originally set March 2020, will be argued October 14, 2020.
Monday, September 21, 2020
Thanks to Lindsay Runnels at Morgan Pilate LLC for this guest blog.
My heart is broken, and I expect yours is, too. Justice Ruth Bader Ginsburg leaves behind an immeasurable legacy and a void so deep which, in this moment, feels overwhelming.
Ifelt a special connection to her even though we never met. Perhaps it is because her pioneering litigation played a defining role in my ability to become a lawyer at all. Where would I be if the law did not permit me to take out loans to pay for law school? Instead, I went to law school without incident and the trajectory of my life, and I expect the lives of many of you, was changed forever. No American was more instrumental in the fight for gender equality or in the defense of reproductive rights. A visionary, she invented an entirely new area of the law based on gender equality. We know it wasn’t just women who benefited, though. It was single parents, naval cadets, a long-overdue recognition that love is love, her tireless defense of the right to vote, and her strong voice that reminded those with power that the due process clause applies just the same to the powerless. She was a champion for so many. This loss feels personal because it is.
Wednesday, September 9, 2020
Recently at the Tenth Circuit:
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)."
"[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.
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).
Sunday, August 30, 2020
Sherlock Homes was right. And now the Sentencing Commission's Interactive Data Analyzer is here to give you data you need to advise your client, negotiate with the prosecutor, and persuade the court.
Let's look at some data snapshots from Kansas federal cases.
Question: What percentage of Hispanic defendants convicted of firearms offenses receive a below-guideline sentence in the District of Kansas?
Answer: In FY 2019, 26.7% of defendants, down from 52% in FY 2018.
Question: What is the median sentence for robbery defendants in the District of Kansas?
Answer: 71 months.
Question: Do Black defendants in Criminal History Category III receive more sentences in excess of 120 months for drug trafficking than white defendants in the same category in the District of Kansas?
Answer: Significantly so: 37% of Black defendants versus 17.6% of white defendants.
Whoa, how did you do that? Especially with the cool graphics?
We didn't. The Sentencing Commission did. When you go to the data analyzer tool, you can filter data by fiscal year, circuit, district, race, gender, age, citizenship, education, crime type, and criminal history category. It's easy; no algorithms or programming, just drop-down menus.
A couple of tabs to note, to help you navigate:
Click on the sentencing outcomes tab, and you can sort by plea status, sentence type, and sentence length.
Click on the guideline application tab, and you can see how sentences are imposed relative to the guideline range and the defendant’s criminal history, and generate heat maps pegged to the sentencing table. Remember that every time you perform a new search, you’ll need to clear all of your filters. There’s a handy button to do just that in each date box.
The Interactive Data Analyzer is a terrific tool to support your arguments that a proposed plea agreement or variance accords with district, circuit, or national practice. Go to the site, play around, and learn a really useful and creative new way to advocate for your clients.