Wednesday, January 29, 2020

Take a look at the report of the Third Circuit Task Force on Eyewitness Identifications

The Third Circuit Task Force on Eyewitness Identification has issued a comprehensive report that is chock full of information and resources. The Task Force was comprised of a variety of stakeholders, including appellate judges, district court judges, law enforcement officers, professors and researchers, a prosecutor, and a public defender. The task force was charged with making recommendations “to promote reliable practices for eyewitness investigation and to effectively deter unnecessarily suggestive identification procedures, which raise the risk of wrongful conviction.” The report reviews science-based research to identify factors and practices that increase or reduce the likelihood of an erroneous identification. The report then makes best-practice recommendations for all types of identification procedures. The report also makes recommendations for changes to the Third Circuit pattern jury instructions about eyewitness identifications. Take a look at the whole report.

Sunday, January 26, 2020

Tenth Circuit Breviaries

Last week at the Tenth Circuit was Fourth Amendment week:

Fourth Amendment

In United States v. Sadlowski, the Tenth Circuit held that (1) a New Mexico metropolitan court did not lack authority to issue a felony-related search warrant; (2) the search warrant was not "sufficiently federal" to require issuance in accordance with Fed. R. Crim. P.  41; (3) the affidavit in support of the search warrant, which relied in part on a confidential informant, provided probable cause for the warrant; and (4) Mr. Sadlowski did not present any evidence to support his request for a Franks hearing.

In United States v. Berg, the Tenth Circuit held that a Kansas Highway Patrol Trooper had reasonable suspicion to detain a driver following a traffic stop based on the trooper's belief that the driver had been driving in tandem with two "escort vehicles," and that his rental car was packed inconsistently with his statement to the trooper that he was moving.

In Donahue v. Wihongi, a Section 1983 case, the Tenth Circuit affirmed the district court's grant of immunity to officers who detained Dr. Donahue. The Court held that Dr. Donahue was detained for public intoxication after he approached officers for help following an altercation with a woman. What started as a consensual encounter became a detention after (1) Dr. Donahue twice denied being intoxicated; (2) the officers continued to question him in a "commanding" tone; and (3) the officers allowed the woman--but not Dr. Donahue--to leave; and (4) the officers told the Doctor that they needed his name and he refused. The Court quoted a Ninth Circuit case for the proposition that "[w]hen a citizen expresses his or her desire not to cooperate, continued questioning cannot be deemed consensual."

The Tenth Circuit also held that Dr. Donahue's detention was supported by reasonable suspicion that he was publicly intoxicated. That suspicion included the woman's report that he was "drunker than Cooter Brown," and the Doctor's agitation and admission that he had been drinking and had had an altercation with the woman.

Monday, January 20, 2020

Tenth Circuit Breviaries

greyscale photo of man using binocular
Can a person "enter" the United States for purposes of unlawful entry under 8 U.S.C. § 1325(a)(1) when that person is under a form of official restraint? And does constant surveillance from the time a person walks across the border until her arrest count as official restraint?

Maybe, and no, answered the Tenth Circuit in United States v. Gaspar-Miguel

"For purposes of this appeal, we need not address the broader question of whether 'entry' under § 1325(a) requires freedom from official restraint. We conclude, as pertinent here, that continuous surveillance by border patrol agents, by itself, does not constitute official restraint."

Thursday, January 16, 2020

5th Circuit really means it: this sentence is substantively unreasonable

In United States v. Mathes, the Fifth Circuit held that the defendant's sentence is substantively unreasonable, for the second time. The defendant pleaded guilty to cocaine distribution. The government dismissed a felon-in-possession charge that would have carried a 15-year mandatory minimum. The government also filed a motion requesting a sentence reduction for the defendant's substantial assistance, which it called "extraordinary" and "at the risk of his life." At the first sentencing, the district court granted the substantial-assistance motion but then varied upward from the 70-to-87-month range to impose 210 months' imprisonment. The district court explained that the defendant got a disproportionate benefit from the dismissal of the firearms charge (even though the government said it dismissed the charge because it found evidence the defendant had not possessed a firearm, and said it would have moved for relief from the mandatory minimum under 18 U.S.C. § 3553(e) anyway). The Fifth Circuit vacated the sentence as substantively unreasonable, holding that since the dismissal didn't actually change the defendant's sentencing exposure, that fact did not support such a large upward variance.

At the resentencing, the district court imposed 160 months' imprisonment, less than the first sentence but still an upward variance. The district court stated that the variance was necessary to avoid unwarranted sentencing disparities, because the defendant's brother had been sentenced to 324 months for the same conduct. The Fifth Circuit held this sentence substantively unreasonable as well, because only unwarranted disparities need to be avoided. This defendant pleaded guilty and cooperated extensively with the government, and his brother did not. The disparity would have been warranted and is an improper basis for an upward variance.

So this defendant will get a third sentencing hearing and substantive unreasonableness review lives, at least occasionally.

Monday, January 13, 2020

UPDATED: Poverty Simulation POSTPONED

Think you know what day-to-day existence is like for a low-income family? Test your knowledge and compassion at a Community Action Poverty Simulation.

A Poverty Simulation is a unique role-playing experience designed to help participants understand the strategies of a low-income family trying to survive, day to day, with a shortage of money and an abundance of stress. It is a simulation, not a game.

Please join us if you are able from 1:00 p.m. to 4:00 p.m. this Friday, January 17, 2020, at KU Law School in Lawrence, Kansas, for a Community Action Poverty Simulation presented by the Judge Hugh Means Inn of CourtDonations will be accepted to support local programs.

THIS PROGRAM HAS BEEN POSTPONED. We will let you know when we have a new date.

For more information, email

Updated on January 16, 2020.

Sunday, January 12, 2020

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Standard of proof at sentencing

The Tenth Circuit generally requires district courts to find sentencing facts by only a preponderance of evidence. But it has also "reserved the question of whether, in some extraordinary or dramatic case, due process might require a higher standard of proof." United States v. Olsen, 519 F.3d 1096, 1104-06 (10th Cir. 2008); accord United States v. Ray, 704 F.3d 1307, 1314 (10th Cir. 2013) (same; citing Olsen).

Last week, in United States v. Robertson, the Tenth Circuit withdrew that reservation, at least until the Supreme Court says otherwise: "The Supreme Court has not adopted a heightened standard of proof at sentencing for contested facts, thus we hold that the correct standard of proof in this case was a preponderance of the evidence. This issue has been foreclosed in this Circuit." The Court expressly discredited any statements to the contrary in Ray.

Standing silent at sentencing

In Robertson, the district court added 10 levels* to Mr. Robertson's total offense level after finding, over Mr. Robertson's objection, that he had pointed a gun at a police officer. The officer testified, but had credibility problems. In discussing the "serious problems" it had with the officer, the district court noted that it was "surprised" that Mr. Robertson hadn't testified "under oath" to contradict the officer. On appeal, the Tenth Circuit held that (1) any error in the judge's alleged reliance on Mr. Robertson's silence was unpreserved, and therefore subject to plain-error review; and (2) the judge's statements were ambiguous, and therefore couldn't be plain error. Judge Briscoe dissented, concluding that the district court plainly erred, and stating that she would reverse and remand for resentencing.

* This was done by combining a firearm enhancement, USSG § 2K2.1, with an enhancement for assaulting a law-enforcement officer, USSG § 3A1.2.

Relevant conduct

Is the ultimate determination of relevant conduct an issue of law, reviewed de novo on appeal, or an issue of fact reviewed only for clear error? Alas, we cannot say. In United States v. Garcia, the Tenth Circuit noted this "perplex[ing]" question, but chose not to answer it, holding instead that Mr. Garcia's relevant-conduct challenge relied on a subsidiary factual question, which was unquestionably reviewable only for clear error.

In Garcia, a 922(g) case, the Tenth Circuit found no error in the district court's treatment of Mr. Garcia's prior firearms possession (one year before his current offense conduct) as course-of-conduct relevant conduct. Read Garcia if you want a detailed analysis of the factors relevant to this analysis: similarity, regularity or repetition, and temporal proximity (but keep in mind that the analysis here is under plain-error review).

Substantive unreasonableness

Thinking about arguing on appeal that your client's above-guidelines sentence is substantively unreasonable? Just know that you have a long row to hoe. In Garcia, the Tenth Circuit rejected Mr. Garcia's substantive-reasonableness challenge to an upward variance of 39 months above the high end of his guidelines range. In affirming the variance, the Tenth Circuit held that it was supported by Mr. Garcia's personal history. The Tenth Circuit was unpersuaded by either Mr. Garcia's proffered statistics about median firearms sentences within the Tenth Circuit ("his argument plainly does not implicate the kind of disparities that § 3553(a)(6) seeks to avoid---that is, nationwide disparities"), or his national statistics ("Mr. Garcia does not place them in a meaningful 'context.'").

Thursday, January 9, 2020

100-second delay during traffic stop is unreasonable

In Rodriguez v. United States, the Supreme Court held that the Fourth Amendment prohibits police officers from extending a traffic stop to investigate matters unrelated to the original purpose of the stop. While officers may investigate such matters simultaneous with routine traffic-stop activities like obtaining identification and registration, they may not "add time" to a stop to conduct any unrelated investigation (absent reasonable suspicion to do so).

In United States v. Brinson, No. CR-119-096 (S.D. Ga.), a Georgia district court recently applied Rodriguez and held that an officer's intentional 100-second delay in issuing a traffic ticket to ask about transporting drugs violated the Fourth Amendment. The stop was for a defective brake light. When checking for outstanding warrants, the officer discovered that the defendant had a prior drug conviction. So he suspended the process of writing a ticket to ask about possible drug activity. After a few questions, the defendant fairly quickly admitted that he had "weed" in the car. The court suppressed the evidence and statements, because the officer impermissibly added time to the stop to ask about drugs. "Even though only one minute and forty seconds elapsed from the moment Deputy Snyder exited his patrol car until Defendant admitted possession of marijuana, this unconstitutionally prolonged the traffic stop and exceeded its narrow purpose."

This opinion joins a few others, holding that even short detours into unrelated matters during a traffic stop are prohibited. See United States v. Clark and United States v. Campbell, where brief questioning about unrelated matters impermissibly extended each stop. (Good faith reliance on prior case law saved the stop in Campbell, but should have less force going forward now that Rodriguez is four years old).

Sunday, January 5, 2020

Tenth Circuit Breviaries

Last week the Tenth Circuit decided United States v. Fields, an appeal from the district court's denial of 28 U.S.C. 2255 relief in a federal capital case.

The Tenth Circuit held that the district court should not have dismissed the 2255 petition without an evidentiary hearing on Mr. Fields's claim that counsel's failure to pursue and present mitigating organic-brain-injury evidence constituted ineffective assistance of counsel. Given issues of fact with respect to both the performance and prejudice prongs of Strickland, the district court should have granted a hearing.

The Tenth Circuit affirmed the district court's dismissal of Mr. Fields's other ineffective-assistance-of-counsel claims.

Thursday, January 2, 2020

Dicta: a hierarchy

We know the nuances distinguishing dicta and holdings keep you awake at night, thrashing about in bed, your mind ablaze. But had you ever considered whether that dicta was emphatic? No, you hadn’t. Because why would you, until the Tenth Circuit’s recent decision in Padilla?

Sure, “[s]tatements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand,” are dicta, and don’t bind subsequent courts. United States v. Villarreal–Ortiz, 553 F.3d 1326, 1328 n.3 (10th Cir. 2009); Bates v. Dep't of Corrections, 81 F.3d 1008, 1011 (10th Cir. 1996). But what if some dicta is more important than other dicta? And how do you tell?

Three kinds of dicta reign supreme. First, the Tenth Circuit considers itself “bound by the Supreme Court's considered dicta almost as firmly as by the Court’s outright holdings[.]” United States v. Burkholder, 816 F.3d 607, 619 (10th Cir. 2016). Second, dicta in a state court decision concerning state law binds a federal court “if it appears to be a clear and unequivocal exposition of the law and is not in conflict with other decisions of that court.” Home Royalty Ass’n v. Stone, 199 F.2d 650, 655 (10th Cir. 1952).

And now we have a third entrant into the dicta hall of importance. The Tenth Circuit just held (albeit in an unpublished opinion) that “well-reasoned and emphatic dicta . . . will and should be afforded more weight by later panels than casual dicta.” United States v. Padilla, __ Fed. Appx. __, 2019 WL 5692530 at 6 (10th Cir. 2019), quoting United States v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (Calabresi, J., concurring).

So what is “emphatic” dicta? The limited number of cases to examine that question say that “emphatic” dicta appears when the circuit court undertakes “a meticulous and conscientious effort” to “clarify the law,” even when that point of law is not decided in the cited case. United States v. Conradt, 2015 WL 480419 at 1 (S.D.N.Y. 2015).

How does this help you? When the government screams “DICTA,” holler back “EMPHATIC DICTA” and explain how the case you are citing attempted to settle the legal point you are arguing. We would continue to discuss why the emphatic dicta canon mirrors the ancient distinction between dictum and obiter dictum, see Abramowicz and Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1048 (March 2005), but you’ve been patient enough.

--Kirk Redmond