DISSENTING OPINION
Federal Public Defender, District of Utah, Newsletter
Winter 2012
Federal Public Defender
Kathryn N. Nester
Panel Representative
G. Fred Metos
Editors
Kristen R. Angelos
Bretta Pirie
Shelly Miller
Technical Advisor
Darla P. Snodgrass
INDIVIDUAL HIGHLIGHTS:
Standing to Challenge Automobile
Searches. . . . . . . . . . . . . . . . . . . 2
My Little Red Rules Book. . . . . 5
Published Quarterly
Issue No. 4
Dear Colleagues:
Almost fifty years ago, the United States Supreme Court, in Gideon v.
Wainwright, recognized the “obvious truth” that a citizen charged with
a crime faces an impossible task in answering such a charge. “Even the
intelligent and educated layman . . . lacks both the skill and knowledge
adequately to prepare his defense, even though he have a perfect one. He
requires the guiding hand of counsel at every step in the proceedings
against him.” Gideon v. Wainwright, 372 U.S. 335, 345 (1963)
No one understands the basic truth of this principle better than those of
us who are asked to represent the accused on a daily basis. As defense
counsel, I am grateful for the opportunity to provide that “guiding hand”
which the Court guaranteed in Gideon. Not everyone has the daily
privilege of standing by a fellow citizen as they seek to respond to
accusations which will forever mark their lives.
Everyone has a story to tell in defense of their lives, and I am honored to
stand with all of you in the daily task of telling the sometimes difficult
stories which our clients need to have told on their behalf.
New Report on Pretrial Release. 6
2013 ODS Training Events. . . . 7
Happy Holidays!
10th Circuit Court Case Update.. 8
~Kathryn N. Nester, Federal Public Defender, District of Utah
Supreme Court Update. . . . . . . 30
American Towers Plaza
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Phone: 801-524-4010
Fax: 801-524-4060
E-Mail: [email protected]
Page 2
Winter 2012
Issue No. 4
STANDING TO CHALLENGE AUTOMOBILE SEARCHES
An Issue That Can Make or Break Even The Best 4th Amendment Challenge
-Spencer Rice, Assistant Federal Public Defender, District of Utah
I often complain about how the Tenth Circuit is a
brutal place to practice criminal defense. Having
practiced for five years in the Ninth Circuit, I speak
from experience when I say that it is sometimes
hard to “keep hope alive” in the Tenth Circuit.
Recently, I had a case with perhaps the best 4th
Amendment issue I have ever spotted. My client
was the driver and sole occupant of a vehicle that
was stopped and searched on I-15 near Nephi.
Following our evidentiary hearing on the motion to
suppress, my colleagues and I were totally
convinced that we had a “slam-dunk” winner. The
only issue that could potentially cause a problem
was standing, and it almost did.
When I first confronted the standing issue, I
reassured myself with thoughts like, “it does not
take much to establish standing,” and, “as long as
my client’s personal rights were violated, we are
good.” Once I started to read the Tenth Circuit
case law, however, my personal reassurances lost
their power to comfort. As it turns out, the Tenth
Circuit’s requirements for establishing standing –
in situations where the defendant is not the owner
of the vehicle searched – are more complex and
tricky than I thought. But then again, I keep
forgetting there are no palm trees in the Tenth
Circuit.
In the paragraphs that follow I will briefly
summarize the Tenth Circuit’s case law regarding
standing issues as they relate to automobile stops
when the defendant is not the owner of the vehicle.
I will then address some of the problems the Tenth
Circuit’s case law creates for our clients. I will
conclude with ideas for establishing standing when
the client is not the owner of the vehicle that was
searched.
TENTH CIRCUIT AND STANDING
The Tenth Circuit’s general rule on standing is
straightforward and mirrors the flexible, case-by-
case approach, established by the Supreme Court
and adopted by other circuits:
[w]e consider two factors in
determining whether a defendant
has standing to assert a violation of
his Fourth Amendment rights:
whether the defendant manifested a
subjective expectation of privacy in
the area searched and whether
society is prepared to recognize
that expectation as objectively
reasonable.
United States v. Parada, 577 F.3d 1275, 1280
(10th Cir. 2009) (citations omitted).
However, in the context of automobile searches,
where the proponent of a motion to suppress is not
the registered owner of the vehicle, the Tenth
Circuit has made establishing standing more
difficult. “The proponent bears the burden of
establishing that he gained possession from the
owner or someone with authority to grant
possession.” United States v. Eckhart, 569 F.3d
1263, 1274 (10th Cir. 2009). The Tenth Circuit
has established rather rigid criteria for deciding the
issue:
[i]n the context of automobile
searches, we have held the
following criteria important[]
though not determinative: 1)
whether the defendant asserted
ownership over the items seized
from the vehicle; (2) whether the
defendant testified to his
expectation of privacy at the
suppression hearing; and (3)
whether the defendant presented
any testimony at the suppression
hearing that he had a legitimate
possessory interest in the vehicle.
Winter 2012
Parada, 577 at 1280 (quoting United States v.
Allen, 235 F.3d 482, 489 (10th Cir. 2000)).
PROBLEMS WITH THE TENTH
CIRCUIT’S CRITERIA
1. The second and third criteria impose a burden
on the non-owner defendant to either personally
testify at the hearing or present other testimony.
These criteria place the defendant in a position of
having to decide which is more important, his
motion to suppress or his trial rights. If the
defendant testifies at the evidentiary hearing or
presents other testimony regarding his expectation
of privacy in the vehicle and why his interest in the
vehicle was legitimate, he risks losing a valid
defense he may have had were he to exercise his
right to a trial in the future. Even worse, by
subjecting himself to cross-examination at the
evidentiary hearing, the defendant runs the risk of
committing perjury.
2. Although the criteria are supposed to only be
“important[] though not determinative,” the Tenth
Circuit often rigidly applies the criteria which has
led to a bright-line test where a majority of the
criteria must be satisfied or no standing will be
found. For example, in United States v. Eckhart,
569 F.3d 1263, 1274-75 (10th Cir. 2009), the
Tenth Circuit found that two defendants did not
have standing to contest the search of a vehicle
because they only satisfied one out of three criteria.
Though they satisfied the first criteria by asserting
ownership over the cooler where drugs were found,
the defendants did not personally testify about their
expectation of privacy in the vehicle nor present
other testimony about how they gained possession
of the car from the owner. Thus, they were found
not to have standing to contest the search. Id.
3. The Tenth Circuit’s criteria blur the line
between passengers and drivers. It is well
established that passengers in vehicles normally do
not have a legitimate expectation of privacy that
would allow them to contest a search of the
vehicle. See, e.g., Rakas v. Illinois, 439 U.S. 128,
143 (1978) (stating that a “passenger simply would
Page 3
Issue No. 4
not normally have a legitimate expectation of
privacy” in a glove compartment and other areas of
a vehicle); United States v. Pulliam, 405 F.3d 782,
785-86 (9th Cir. 2005) (“as a passenger with no
possessory interest in the car, [the defendant] had
no reasonable expectation in a car that would
permit [his] Fourth Amendment challenge to a
search of the car”); United States v. DeLuca, 269
F.3d 1128, 1132 (10th Cir. 2001) (“we have held
that without a possessory or property interest in the
vehicle searched, passengers lack standing to
challenge vehicle searches”).
A driver of a vehicle, however, has a different level
of possession and privacy expectations that society
recognizes as legitimate. The Tenth Circuit’s
criteria places a burden on non-owner drivers that
goes above and beyond what would normally be
necessary to establish the expectation of privacy
that society recognizes as reasonable.
In fact, the Tenth Circuit’s requirement that a
driver testify or present testimony about his
expectation of privacy and how he obtained
possession of the vehicle is very similar to the
logic used by the Supreme Court in Rakas to deny
standing to the defendants who were only
passengers, not drivers. Rakas, 439 U.S. at 148-49
(the Court emphasized that the passengers
“asserted neither a property nor a possessory
interest in the automobile, nor an interest in the
property seized”). The Rakas decision, however,
was careful to repeatedly emphasize that the
defendants were only passengers, not drivers. A
driver of a vehicle naturally manifests a greater
possessory interest over the vehicle than a
passenger. The Tenth Circuit’s criteria does not
make a meaningful distinction between passengers
and drivers.
HOW TO ESTABLISH STANDING
WHEN YOUR CLIENT IS NOT THE
OWNER OF THE VEHICLE
To comply with the Tenth Circuit’s criteria, the
most obvious way to establish standing would be
to have the client testify at the suppression hearing.
Winter 2012
However, as mentioned above, there are several
reasons why that option is normally not in the
client’s best interest. There are, however, other
methods for establishing standing when your client
is the non-owner driver of a vehicle and has a
promising motion to suppress.
1. Circumstantial evidence is sufficient to
establish standing to challenge the search of an
automobile, even in the Tenth Circuit. In United
States v. Angulo-Fernandez, 53 F.3d 1177 (10th
Cir. 1995), the Tenth Circuit found that the
defendant had standing to challenge a search even
though he was not the owner of the vehicle and did
not testify about how he came into possession of
the vehicle. The defendant was able to use the
statements he made to the officer during the traffic
stop as evidence establishing his reasonable
expectation of privacy in the vehicle. Id. at 1179.
In its holding the Tenth Circuit explained:
[t]he officer’s testimony
established that Mr. AnguloFernandez had claimed to have
borrowed the car from the rightful
owner and had produced a
registration bearing the owner’s
name. Although such evidence
may not be determinative of the
defendant’s right to possess the car,
absent evidence to the contrary, it
is sufficient to meet his burden of
demonstrating Fourth Amendment
standing.
Id. (emphasis added). See also United States v.
Orrego-Fernandez, 78 F.3d 1497, 1502 (10th Cir.
1996) (“where the defendant offers sufficient
evidence indicating that he has permission of the
owner to use the vehicle, the defendant plainly has
a reasonable expectation of privacy in the
vehicle...”).
Although the Tenth Circuit’s rigid criteria places
an emphasis on the client’s testimony at the
evidentiary hearing, that is not the only way to
establish his reasonable expectation of privacy in
Page 4
Issue No. 4
the vehicle. Evidence such as statements to the
officer regarding how the client came into
possession of vehicle; the client as the sole
occupant of vehicle; the client’s ability to provide
registration and insurance; dispatch confirming
valid registration and insurance; no report of stolen
vehicle; client’s luggage or items stored in the
vehicle; and many other facts can adequately
establish that the client has permission to use the
vehicle and has a privacy interest in the vehicle
that society recognizes as objectively reasonable.
2. Challenge the personal detention of the
client.
The Tenth Circuit has “repeatedly
recognized that although a defendant may lack the
requisite possessory or ownership interest in a
vehicle to directly challenge a search of that
vehicle, the defendant may nonetheless contest the
lawfulness of his own detention and seek to
suppress evidence found in the vehicle as the fruit
of the [defendant's] illegal detention.” United
States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir.
2001). Thus, if you run into problems with
standing to directly contest the search of the
vehicle, focus instead on why the client’s detention
was unconstitutional. If any part of the client’s
detention was bad, there is an argument that the
fruits of the unlawful detention must be
suppressed.
To suppress evidence as the fruit of an unlawful
detention, the client “must make two showings: (1)
that the detention did violate his Fourth
Amendment rights; and (2) that there is a factual
nexus between the illegality and the challenged
evidence.” Id. In order to show a factual nexus,
the client “must adduce evidence at the
suppression hearing showing the evidence sought
to be suppressed would not have come to light but
for the government's unconstitutional conduct.”
Id.
3. Challenge the search of client’s luggage or
personal items in the car. The Tenth Circuit has
carefully determined that a defendant – even when
he is simply a passenger in a vehicle – has
standing to challenge the search of his bags located
Winter 2012
in the vehicle despite his lack of standing to
challenge the search of the car itself. See United
States v. Edwards, 632 F.3d 633 (10th Cir. 2001).
In Edwards, the defendant’s bags were closed and
stored in the trunk of the vehicle. Id. at 642. The
bags contained items such as clothing and
toiletries. Based on those facts, the Tenth Circuit
found “that [the defendant] clearly manifested a
subjective expectation of privacy in the bags and
that his expectation was one that society has
recognized as reasonable.” Id. Although the
defendant, who was a passenger in a rented
vehicle, did not have standing to contest the search
of the vehicle directly, he nonetheless had standing
to challenge the search of his bag stored in the car.
Id.
4. Argue that the government waived its right
to contest standing. Normally, the defendant
bears the burden of establishing standing to
challenge a Fourth Amendment violation.
However, the Tenth Circuit has found that “the
issue of Fourth Amendment standing [can] be
waived if the government has failed to raise it in a
timely fashion during the litigation.” United
States v. Dewitt, 946 F.2d 1497 (10th Cir. 1991).
In Dewitt, the Tenth Circuit stated that “the
government offer[ed] no excuse for its failure to
raise the standing issue in a timely fashion at the
suppression hearing,” and so the court concluded
that the government had waived the standing
argument. Id. at 1500 (emphasis added).
Thus, after the client has filed his initial motion to
suppress pursuant to the local rules (DUCrimR 121(d)), there may be a waiver argument if the
government does not raise the standing issue prior
to or during the evidentiary hearing. If the
government does not indicate it is contesting
standing and does not engage the witnesses in a
series of questions that would indicate its intent to
contest standing, the same waiver argument would
apply.
In my case, we ultimately prevailed on the standing
issue by using each and every one of the strategies
Page 5
Issue No. 4
described above. There may be no palm trees in
the Tenth Circuit, but as long as you have a really
big “kitchen sink,” there is still reason for hope.
____________________________________
"My Little Red Rules Book," is now
available on iTunes for $6.99!
The application's interface is sleek, easy to
use, and contains everything in the print
version, with one fabulous addition:
All case annotations in the app are
hyperlinked to Google Scholar.
This means that a user is only a few clicks
away from reading full cases online, without
the need for a Westlaw or Lexis password.
Unfortunately, the Federal Public Defender
Office, District of Utah, will no longer be able
to purchase hard copies for panel members.
Winter 2012
NEW REPORT ON
PRETRIAL RELEASE
The Bureau of Justice Statistics has issued a new
report on pretrial release in the federal system. It
could be helpful in any number of ways in arguing
for pretrial release for your clients.
The report can be found at:
http://www.bjs.gov/content/pub/pdf/prmfdc0810
.pdf
Accompanying press release:
WASHINGTON – From 2008 to 2010, federal
district courts released more than a third (36
percent) of defendants prior to case disposition,
according to a study released today by the Justice
Department’s Bureau of Justice Statistics (BJS).
Nearly two-thirds (66 percent) of released
defendants were released at their initial appearance
hearing, while the rest were released at subsequent
events including detention or bond hearings.
The data analyzed for this study were provided to
BJS by the Administrative Office of the U.S.
Courts’ Office of Probation and Pretrial Services,
which includes details on the decision to release or
detain defendants in federal district courts and the
defendant’s behavior while on pretrial release. The
report combines data for fiscal years 2008 to 2010.
The likelihood of a defendant being released
pretrial was related to the type of offense charged.
Defendants charged with property offenses (71
percent) were most likely to be released pretrial,
followed by those charged with public-order (65
percent), drug (38 percent), weapons (32 percent)
and violent (30 percent) offenses. Immigration
offenders (12 percent) were the least likely to be
released prior to case disposition.
Pretrial release decisions were also influenced by
a defendant’s criminal history. Half (51 percent) of
federal defendants with no arrest history received
pretrial release, compared to around a quarter (27
percent) of defendants with five to 10 prior arrests
Page 6
Issue No. 4
and a fifth (21 percent) of those with 11 or more
prior arrests. Federal defendants who had a prior
felony conviction (23 percent) were less likely to
be released pretrial than defendants who had only
a misdemeanor conviction record (41 percent).
Nearly three-quarters of federal defendants
released pretrial did not pay a financial bond to
secure their release. Most were released through
unsecured bond (39 percent) or on their own
recognizance (32 percent). Of defendants who
paid a financial bond in order to gain pretrial
release, 12 percent posted a deposit bond, 8 percent
used surety bonds (or bail bondsmen) and 7
percent used collateral bonds.
About 8 out of 10 federal defendants released prior
to their case disposition had conditions attached to
their release. Nearly all (99 percent) defendants
released with pretrial conditions had travel
restrictions, 72 percent were required to receive
drug testing or substance abuse treatment, 62
percent had weapons restrictions, 49 percent had to
remain employed or seek employment, and 32
percent received home detention or electronic
monitoring.
From 2008 to 2010, 19 percent of federal
defendants released prior to case disposition
committed some form of pretrial misconduct.
Most pretrial misconduct involved technical
violations (17 percent) of release conditions,
such as failing a drug test or failure to maintain
electronic reporting requirements. Relatively few
released defendants were rearrested for new
offenses (four percent) or missed court
appearances (one percent). More than half (56
percent) of release defendants who committed
pretrial misconduct had their release revoked.
The proportion of defendants in federal district
courts who were released pretrial varied by gender,
age, race, and Hispanic origin. For instance,
females (65 percent) were more than twice as
likely as males (31 percent) to be released pretrial,
and defendants ages 18 to 39 were less likely to be
released than those age 17 or younger or age 40 or
older.
Winter 2012
Around two-thirds of Asian/Pacific Islander (66
percent) and white non-Hispanic (65 percent)
defendants were released pretrial, compared to
about a half of American Indian/Alaska Native (54
percent), two-fifths of black non-Hispanic (43
percent), and about a fifth of Hispanic (20 percent)
defendants.
The differences in release by race or ethnicity may
be due to certain groups in the federal courts
having more serious criminal histories. A higher
percentage of blacks (61 percent) and American
Indian/Alaska Natives (43 percent) had five or
more prior arrests compared to whites (36 percent).
Also, a higher percentage of black (46 percent) and
American Indian/Alaska Native (33 percent)
defendants had a prior violent felony conviction
compared to white (27 percent) defendants.
-Denise C. Barrett, J.D.. M.S.W.
National Sentencing Resource Counsel
Federal Public and Community Defenders
Phone: (410) 474-9861
Email: [email protected]
__________________________________
Page 7
Issue No. 4
Office of Defender Services
2013 Training Events
Persuasive Writing Workshop
January 14 - January 16, 2013
Orlando, Florida
Fundamentals of Federal
Criminal Defense
January 17, 2013
Orlando, Florida
Winning Strategies Seminar
January 17 - January 19, 2013
Orlando, Florida
MOOT/MOCK
TRIAL SESSIONS
Sentencing Advocacy Workshop
The Federal Public Defender, District
of Utah, hopes to be able to assist
anyone who needs or wants to practice
or run through any legal presentation.
We can pull together a moot/mock
team to meet your needs. We are also
willing and able to arrange moot
sessions outside office hours with
advance notice.
Trial Skills Academy
Please contact co-chairs:
Benji McMurray or Daphne Oberg
at 801-524-4010.
February 14 - February 16, 2013
San Francisco, California
April 24 - April 29, 2013
San Diego, California
Sentencing Advocacy Workshop
June 13 - June 15, 2013
Baltimore, Maryland
PLEASE VISIT www.fd.org FOR
REGISTRATION INFORMATION.
Page 8
Winter 2012
Issue No. 4
10th Circuit Court Case Update
I.
SEARCH AND SEIZURE
A.
Reasonable Suspicion
Reasonable Suspicion to Stop a Car Without Traffic/Equipment Violation
United States v. Whitley, 680 F.3d 1227 (10th Cir. June 1, 2012).
Reasonable suspicion is enough to justify a traffic stop, even in the absence of an observed traffic violation;
the standards for Terry apply to traffic stop whether they involve traffic violations or not. Under vertical
collective knowledge doctrine, only the officer requesting the stop, not the officer performing it, need have
reasonable suspicion. Stated reason for stop of officer performing it not relevant in determining if requesting
officer had reasonable suspicion.
Ruse Checkpoints and Reasonable Suspicion
United States v. Neff, 681 F.3d 1134 (10th Cir. June 5, 2012).
Under City of Indianapolis v. Edmond, 531 U.S. 32 (2000) narcotics checkpoint on highway violates Fourth
Amendment. Ruse checkpoints are still employed to develop individualized suspicion of drivers who exit
highway to avoid them. Neff’s behavior here insufficient to create reasonable suspicion for stop. Taking next
exit after ruse checkpoint sign in rural area without services is not enough by itself to create reasonable
suspicion, although it may be considered and can be a persuasive, if insufficient factor. Police must “identify
additional suspicious circumstances or independently evasive behavior to justify stopping a vehicle that uses
an exit after ruse drug checkpoint signs.” Police did not offer enough here—Neff pulled into rural driveway,
turned around, and then looked startled when he saw a patrol car.
Finding Underlying Traffic Violation
United States v. Burciaga, 687 F. 3d 1229 (10th Cir. July 25, 2012).
Construing New Mexico traffic statute in light of New Mexico Supreme Court precedent, court reverses grant
of district court’s grant of motion to suppress. Relevant statute as interpreted by state courts requires signal
100 feet before lane change if there is a reasonable probability traffic may be affected by change. Whether
there is such a reasonable probability is assessed not only in terms of actual effects on other drivers’ actions,
but also in terms of possible effects on the decision-making processes of other drivers. District court erred
in determining whether lane change actually affected anyone, “making it all but impossible for the
Government to fit the evidence with [the] parameters [of the statute].”
B.
Use of Force in Terry Stop
United States v. Salas-Garcia, --- F.3d ----, 2012 WL 5192768 (10th Cir. Oct. 22, 2012).
Court assesses whether quantum of force employed during Terry stop is reasonable under totality of
circumstances. The use of handcuffs may or may not convert Terry stop into arrest. Where officers have
reason to fear for safety, handcuffing reasonable. Fact of drug transaction will support reasonable suspicion
that suspect armed and dangerous; large quantity of drugs (here, kilo of cocaine) justifies fear, as does fear
for public safety since stop in hospital parking lot.
Winter 2012
C.
Page 9
Issue No. 4
Reasonable Expectation of Privacy
No Reasonable Expectation of Privacy in Airplane Hangar Defendant Did not Control, but Had
Permission to Use Occasionally
United States v. Ruiz, 664 F.3d 833 (10th Cir. Jan 10, 2012).
Defendant did not have a reasonable expectation of privacy in rented space in airplane hangar comparable to
that of a renter of a motel room. The hangar was “entirely controlled” by its owner and defendant shared
rented space with other customers. The more proper analogy is to an overnight guest in a house, where the
home’s owner may admit others to the house; here the hangar owner was entitled to admit police.
D.
Officer’s Subjective Intentions
United States v. Madden, 682 F. 3d 920 (10th Cir. June 19, 2012).
Officer testified that search of car was impound/inventory (in part), that was arguably illegal under state law.
The officer’s “stated justification for the search is irrelevant because the good-faith inquiry is an objective one.
. . If ‘the circumstances, viewed objectively, justify the challenged action. . .that actions was reasonable
whatever the subjective intent motivating the relevant officials.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080
(2011). Good faith exception does not depend on officers’ subjective good faith: whether the officer “lied
at the suppression hearing is irrelevant in determining whether the good-faith exception applies in this case:
it has no bearing on the ‘objectively ascertainable question whether a reasonably well trained officer would
have known that the search was illegal. . . [considering] all of the circumstances.” (quoting Leon.)
E.
Warrants
Armijo v. Perales, 688 F.3d 685 (10th Cir. August 1, 2012).
In this § 1983 action against officers who arrested the plaintiff and searched his home, the court of appeals
affirms the district court’s finding that the defendants were not entitled to qualified immunity. The officers
had obtained a search warrant for the home of the chief of police based on an assertion that he had purchased
six firearms on behalf of the city, but kept two for himself. However, the affidavit in support of the search
and arrest warrants acknowledged that the city had only paid for the four firearms it had undisputably
obtained, and nowhere provided any facts to give rise to an inference that the other two firearms were paid
for by the city. In addition, the warrant authorized a search for evidence of drug dealing and all financial
records. The court holds that the warrant was facially invalid because of its overbreadth, and acknowledged
the fact that qualified immunity is lost under the same standard as a loss of good faith under Leon. Likewise,
the arrest warrant was invalid, as it failed to provide any arguable basis for probable cause that the plaintiff
had caused the city to purchase the two additional firearms which he had obtained. The court holds that
“confusion” was shown due to conflicts in the records as to how many firearms had been ordered by the city,
but finds that confusion does not equate to probable cause. Dissent (Tymkovich) would have held that
qualified immunity existed as to the arrest warrant, based on deference to the issuing judge’s probable cause
determination.
II.
RIGHT TO COUNSEL
A.
Right to Choice of Counsel and Conflicts
United States v. McKeighan, 685 F.3d 956 (10th Cir. July 17, 2012).
The government has a duty to bring any conflict of which it is aware in defendant’s representation to court’s
Winter 2012
Page 10
Issue No. 4
attention. Prosecutors could wrongly use forfeiture claims and subpoenas to interfere with defendant’s rights,
but the determination of whether this occurred is left primarily to trial courts. Even if the government pointed
out a conflict and its conduct contributed to defense counsel’s withdrawal, “the prosecution’s actions must
be improper to create an ‘erroneous’ deprivation.” Courts have a duty to balance defendant’s right to choice
of counsel against protecting professional standards, the reputation of the courts, and the orderly
administration of justice, and may deprive a defendant of counsel of choice to protect “some overriding social
or ethical interest.” When a court identifies a conflict, it has “substantial latitude to disqualify counsel.” The
court expresses some discomfort that the district court allowed the government to make a sealed ex parte
submission regarding the conflicts issue, but the district court indicated a willingness to hold an adversarial
hearing on the issues raised.
B.
Proceeding Pro Se
Clear and Unequivocal Assertion of Client’s Desire to Proceed Pro Se
United States v. Loya-Rodriguez, 672 F.3d 849 (10th Cir. Feb. 22, 2012).
Refusal to speak to attorney is not an implied assertion that defendant wishes to proceed pro se. A defendant’s
assertion of right to represent himself must be clear and unequivocal. A pleading by counsel is not an
assertion by the client unless the attorney is advancing position communicated by client. If the client makes
a clear and unequivocal request, the district court must conduct a comprehensive formal inquiry to determine
whether the waiver of right to counsel is knowing and intelligent.
III.
PRELIMINARY PROCEEDINGS/PRE-TRIAL MOTIONS
A.
Grand Jury Proceedings
Court Interpreters Act
United States v. Hasan, 686 F.3d 1159 (10th Cir. July 31, 2012)
In the third appeal in this case, the court finally affirms the district court’s findings after two prior remands
on essentially the same issue. Defendant, a refugee from Somalia, was the subject of a grand jury
investigation into whether he had lied during his immigration proceedings in making a claim of being subject
to persecution in Somalia. After his testimony, he was charged with perjury before the grand jury, and
appealed based upon his claim that the grand jury proceeding should not form the basis for a perjury charge
because it was fundamentally unfair due to defendant’s inability to understand English. The district court
failed to make adequate findings on the first two remands on this issue, but gets it right this time, by finding
that even if defendant’s ability to understand and communicate in English was inhibited, it was not so
deficient that the grand jury proceeding was rendered fundamentally unfair.
B.
Indictments
Pre-Indictment Delay
United States v. Madden, 682 F. 3d 920 (10th Cir. June 19, 2012).
Pre-indictment delay not a violation of 5th Amendment due process unless defendant can show actual
prejudice and deliberate tactical delay by government. Actual prejudice must be definite and not speculative.
That state prosecutor would have made state sentence concurrent had federal case been commenced
simultaneously is speculative. Pre-indictment delay did not violate Sixth Amendment speedy trial rights
because those rights are triggered by federal arrest (or initial appearance) not state arrest.
Winter 2012
IV.
Page 11
Issue No. 4
JURISDICTION AND VENUE
United States v. Cope, 676 F.3d 1219 (10th Cir. May 1, 2012).
Venue for operating a common carrier (commercial aircraft) under the influence of alcohol proper in any
district through which flight passed.
V.
GUILTY PLEAS
A.
Plea Agreements
Waivers and Collateral Attacks on Validity of Plea and Waiver
United States v. Viera, 674 F/3d 1214 (10th Cir. March 28, 2012).
A waiver of postconviction rights in a plea agreement does not preclude a collateral attack on the validity of
the plea in general or the waiver in particular. The court assesses claims on a case-by-case basis to determine
if a particular claim is an “attack [on] the validity of the plea or the waiver.” The claim that counsel was
ineffective here for failing to file direct appeal—the plea agreement also waived the right to appeal—does not
relate to the validity of the plea or waiver and so the claim falls within the scope of the waiver.
Ineffective Assistance During Plea Negotiations
United States v. Moya, 676 F.3d 1211 (10th Cir. April 16, 2012).
In Missouri v. Frye, 132 S.Ct. 1399 (S.Ct. March 21, 2012), Supreme Court set out general test for ineffective
assistance of counsel in negotiating plea agreements: “a reasonable probability that the end result of the
criminal process would have been more favorable” had the defendant had effective assistance. Where
Defendant argues that ineffective assistance caused him to take plea deal rather than proceed to trial, the test
remains whether defendant can show a “reasonable probability” that he would have gone to trial absent
counsel’s errors.
B.
Remedy for Government Breach of Plea Agreement
United States v. Oakes, 680 F.3d 1243 (10th Cir. June 5, 2012).
There are two remedies available when government breaches a plea agreement: withdrawal of guilty plea of
resentencing, typically in front of a different judge. If the breach is particularly egregious, withdrawal is the
appropriate remedy, but if typical remedy (e.g. for improper statement by prosecutor) is re-sentencing.
Defendant did not seek to withdraw plea on appeal, so resentencing the only available remedy. Here, the
government’s breach was caught immediately after sentencing and court re-convened and struck prosecutor’s
improper statements before reimposing same sentence. This resentencing is all defendant was entitled to.
Defense counsel indicated that the same judge was acceptable, and choice of judge is a “tactical decision left
to counsel.” While consultation with client might be advisable, it does not appear to be necessary. There is
a partial dissent arguing that “the decision to hold the prosecution to its promise belongs to the defendant, not
to the whim of counsel.”
VI.
TRIAL
A.
Confidential Informants
United States v. Cruz, 680 F.3d 1261 (10th Cir. June 11, 2012).
In determining whether to require disclosure of a confidential informant’s identity, a court must balance the
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Issue No. 4
public interest with protecting informants with defendant’s ability to mount a defense. When a district court
denies a motion to disclose without in camera proceedings, that decision may be reversed if the informant
“was the only person able to support the defense theory or contradict prosecution witnesses.” But if the value
of the informant is speculative or irrelevant to the defense, the denial will be upheld. Court places defendant’s
case on this spectrum and finds it closer to the speculative end. The controlled buy here was not basis of
indictment although did support finding of intent; the district court performed requisite balancing; informant’s
testimony inculpatory and “really secondary to the fact of purchase.” Government need not explicitly assert
its interest in protecting informant: the Court assumes an interest in protecting informant and flow of
information.
B.
Joinder of Counts
United States v. Bagby, --- F.3d ----, 2012 WL 4902919 (10th Cir. Oct. 17, 2012).
Court finds no plain error in joinder of drug charges and felon in possession where drugs and ammunition
seized from different locations (garage and room in house) three months apart. Court has never set per se
temporal proximity requirement for joinder of drug and gun counts.
C.
Evidence
Prior State Offenses v. Prior Federal Offenses under Federal Rule of Evidence 414
United States v. Sturm, 673 F.3d 1274 (10th Cir. March 13, 2012) (on remand to original panel after rehearing
en banc). Federal Rule of Evidence 414 allows admission of certain offenses of child molestation, and
defines the qualifying offenses with reference to a federal statute. The federal statute referenced has an
interstate commerce element, but a corresponding state statute does not need one for offenses under the state
statute in order to serve as predicates under 414: “the interstate character of a defendant’s prior crimes has no
bearing on the evidence’s probative value.” Rule 403 applies to Rule 414 evidence so Court performs 4-part
test set out in Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998), a test designed to exclude evidence
“infrequent[ly,]” and finds evidence admissible.
Admissibility of Evidence Underlying Summaries for Federal Rule of Evidence 1006
United States v. Irvin, 682 F.3d 1254 (10th Cir. March 22, 2012).
Admission under Fed. R. Evid. 1006 of chart summarizing several boxes of documents, themselves
inadmissible as business records. Burden is on proponent of summary admitted under R. 1006 to show the
information summarized is itself admissible; government failed to carry burden. Error not harmless because
government relied heavily on chart during trial, used “suggestive terminology” on chart, including
“condemnatory section headings,” and insisted on importance of chart in resisting defense objections to it at
trial. Court also clarifies that it has never determined whether adoptive business records are admissible under
Federal Rule of Evidence 803(6) despite what the D.C. Circuit has said to the contrary.
District Court Findings Required by Daubert
United States v. Avitia-Guillen, 680 F.3d 1253 (10th Cir. June 6, 2012).
A district court fulfills its gatekeeping function regarding expert qualifications under Daubert when it makes
some findings regarding reliability that indicate bases of judge’s reliability determination; a conclusory
statement that court made the determination is inadequate. Key inquiry in determining if district judge made
adequate findings on record regarding reliability determination is whether there is enough in record for court
of appeals to ensure district court properly applied relevant law. Reciting the standard from Fed. R. Evid 702
may be enough, particularly when area of expertise not too abstruse, as in qualifying fingerprint expert.
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Issue No. 4
Findings regarding methodology, in contrast to qualifications, might have to be more detailed. Note that an
objection to expert’s qualifications does not preserve the question of expert’s “methodology.”
Expert Opinion Testimony and Expert Fact Testimony
United States v. Orr, 692 F.3d 1079 (10th Cir. Aug. 29, 2012).
Government did not attempt to qualify some witnesses as experts and district judge permitted them to testify
as to facts about the results of tests communicated to defendant in fraud case. District judge did not allow
witnesses to testify as to truth of underlying tests, holding that would be impermissible expert testimony.
Majority agrees: the trial judge “walked a careful line between allowing witnesses to testify based on firsthand knowledge and disallowing opinions based on their expertise.” Dissent disagrees, arguing that Rule 702
“covers all testimony based on ‘scientific, technical, or other specialized knowledge,” and so majority relies
on “erroneous distinction between expert opinion testimony and expert fact testimony.”
Excited Utterance Exception to Hearsay
United States v. Frost, 684 F.3d 963 (10th Cir. July 10, 2012).
Hearsay is admissible under the excited utterance exception (Fed. R. Evid. 803(2)) if the statement is made
1) after a startling event; 2) while still under influence of event; and 3) there is a nexus between event and
content of statement. Statements made to police are admissible depending on 1) the spontaneity of the
statement, and 2) the declarant’s level of excitement. Statements volunteered are more likely to be
spontaneous than those made in response to police questioning, but a statement in response to a question may
still be spontaneous if the question was “somewhat open-ended,” rather than “suggestive.” If declarant’s level
of excitement high, statements in response to questions may still be admissible, and sexual assault “may
produce the requisite level of emotional excitement in some victims.”
Use of Rich Vein of Criminal History to Prove Prior Felonies in Absence of Stipulation
United States v. Bagby, --- F.3d ----, 2012 WL 4902919 (10th Cir. Oct. 17, 2012).
Defendant refused to stipulate to prior convictions in § 922(g) prosecution and court admitted “penitentiary
pack,” that contained a good deal of extraneous information about felonies, prison disciplinary record, and
parole status. No plain error review, but warning to prosecution that none of the extraneous information
relevant even in absence of stipulation and introduction of unredacted penitentiary pack could be reversible
error under different facts/standard of review.
Confrontation, Lab Reports, and Williams
United States v. Pablo, --- F.3d ----, 2012 WL 3860016 (10th Cir. Sept. 6, 2012).
On remand after Williams v. Illinois, 567 U.S. ____ (2012), Court reconsiders expert testimony at trial as to
DNA analysis performed by technicians who did not testify. Court reviews its own pre-Williams precedent
that whether an expert witness may disclose out-of-court statements without a confrontation problem is “a
question of degree.” If the expert merely parrots an out-of-court statement, there is a problem, but if the
expert is conveying independent judgment and disclosure is incidental, there is not a problem. Panel
concludes Williams does not necessarily conflict with this, but may add additional limitations if you count the
5 members of the USSC who concluded that even in non-parrot situations, the expert was relying on out-ofcourt statements for truth of matter asserted. In addition to plain error problem, the defendant did not include
the reports of either analyst in record, making it impossible to determine if the expert parroted them or not.
Winter 2012
D.
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Issue No. 4
Defenses
Entrapment by Estoppel
United States v. Bader, 678 F.3d 858 (10th Cir. May 3, 2012).
The defense of entrapment by estoppel arises when “an agent of the government affirmatively misleads a party
as to the state of the law and that party proceeds to act on the misrepresentation so that criminal prosecution
of the actor implicates due process concerns under the Fifth and Fourteenth Amendments.” Here defendant
relied on decisions by federal courts, but a court is not an agent of the government for purposes of analysis.
Court also remands for reconsideration of forfeiture in light of reversal of some of convictions.
Withdrawal and Aiding and Abetting
United States v. Burks, 678 F.3d 1190 (10th Cir. May 29, 2012).
Court assumes without deciding that the affirmative defense of withdrawal is available to an aiding and
abetting charge under the Dyer Act, the federal auto-theft statute. Court notes what might be salient
differences between conspiracy and aiding and abetting, for purposes of withdrawal defense, but declines to
hold categorically that withdrawal can never be a defense to aiding and abetting—the court must examine the
elements of each crime to determine if withdrawal defense appropriate. Defendant also argues that car, which
was stolen and stripped in Nevada, recovered by police, repurchased by same thieves at police auction and
then taken to Utah, was not stolen when it crossed state lines. But Court unwilling to extend “the recovered
property doctrine to situations in which a thief abandons the vehicle with the intention of purchasing it once
it has been recovered by authorities.”
E.
Prosecutors
United States v. Orr, 692 F.3d 1079 (10th Cir. Aug. 29, 2012).
In fraud case prosecutor asked investor hypothetical asking if he would have invested if he had known test
results of new fuel were not as presented by defendant. Prosecutor not vouching for witnesses on substantive
question of what test results were, but rather showing materiality of representations to investors.
F.
Juries
United States v. Shippley, 690 F.3d 1192 (10th Cir. Aug 14, 2012).
Jury returned general verdict of guilty, but not-guilty verdicts on all the underlying special interrogatories on
which general verdict depended. District Court did not err in bringing inconsistency to jury’s attention and
directing further deliberations while making it clear that verdict could go either way or that jury could stay
with present inconsistent verdict. Court of Appeals does not express opinion on issues defendant did not
raise, like whether initial verdict really inconsistent, whether double jeopardy clause violated by additional
deliberations, and whether any constitutional provision required lenity in interpreting verdict(s). Catch-all
provision in Federal Rules of Criminal Procedure 57(b) if rules don’t address problem, judges may regulate
practice in any manner consistent with federal law. Fascinating discussion of history of jury oath rendered
irrelevant by second and fourth prongs. Concurrence argues that strategic failure to object constitutes waiver
rather than forfeiture.
United States v. Turrietta, 696 F.3d 972 (10th Cir. Aug. 29, 2012).
Defense counsel waited until after guilty verdict to protest that verdict a nullity because jury never sworn; “to
his everlasting credit,” the lawyer confessed at oral argument that he knew of problem all along but waited
to see if he could get acquittal before objecting. (His everlasting credit notwithstanding, his “considered and
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Winter 2012
Issue No. 4
measured silence demonstrates the need for a contemporaneous-objection rule. He did not invite error, but
he compounded it. The law takes a dim view of such tactics. . . it is no defense to say it was done in the
client’s interest. Seldom will violating a procedural rule work in favor of the client.”) Verdict by unsworn
jury may be problem of constitutional dimension, but issue forfeited because lawyer did not timely assert
right.
Internal Bias vs. External Influence
United States v. Cornelius, --- F.3d ----, 2012 WL 4075877 (10th Cir. Sept. 18, 2012).
Immediately after verdict delivered, juror gave prosecutor letter offering to do whatever he could to rid society
of this cancer [the Crips]. Evidentiary hearing only proper to inquire into external influences on jury, and this
rather had to do with a juror’s internal state of mind. An “internal bias within a juror does not transform into
an external influence merely because that juror deliberates with his fellow jurors.” It is also possible the juror
reached his cancer conclusion based on evidence in this trial.
G.
Instructions
United States v. Cornelius, --- F.3d ----, 2012 WL 4075877 (10th Cir. Sept. 18, 2012).
Very hazy line between forfeiture and waiver for jury instructions. Express approval of a jury instruction
precludes appellate review, whereas indicating that defendant has no objection to proposed instruction is
merely forfeiture.
United States v. Harris, 695 F.3d 1125 (10th Cir. Sept. 18, 2012).
Rejects government’s claim that saying “no objection” to instruction at jury instruction conference constitutes
invited error and thus precludes appellate review. If defendant offers the instruction later attacked, that is
invited error.
VII.
SENTENCING
A.
Procedural Reasonableness
1.
Calculating the Guidelines Range
"Sentence imposed" under § 2L1.2 Means Sentence Imposed Prior to Deportation
United States v. Rosales-Garcia, 667 F.3d 1348 (10th Cir Feb. 7, 2012).
U.S.S.G.§ 2L1.2 imposes a 12- or16-level increase to the illegal reentry when defendant was convicted of a
prior drug trafficking felony. The difference between the two possible increases depends on the sentence
imposed for the prior conviction: the sixteen-level increase applies if the “sentence imposed” for the prior
drug trafficking felony exceeded 13 months. The “sentence imposed” means the sentence imposed for the
drug trafficking felony prior to deportation. If a defendant’s probation is revoked and an additional sentence
is imposed after he was deported, that additional sentence is not considered the “sentence imposed” for
purposes of the 16-level enhancement of § 2L1.2(b)(1)(A).
Relevant Conduct: Common Scheme or Plan Can Justify Thirteen Year Gap Between Instances of
Relevant Conduct
United States v. Damato, 672 F.3d 832 (10th Cir. Feb. 22, 2012).
Defendant convicted of marijuana distribution conspiracy from December 2003 to March 2006. In calculating
drug quantity, district court included as relevant conduct under U.S.S.G. § 1B1.3(a)(2) a 1990 transaction
Winter 2012
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Issue No. 4
involving defendant and some of co-conspirators. Conduct can be relevant if, inter alia, it is “part of the same
course of conduct or common scheme or plan as the offense of conviction.” To be part of the same course
of conduct, two activities must be sufficiently similar, regular, and/or close in time. The relative strength of
one factor can make up for the relative weakness of another. The thirteen years at issue here is an
unprecedented length between the incidents in question, there was little to no evidence of regularity, and the
“moderate similarity” between the 1990 incident and offense conduct cannot compensate on the sliding scale.
An earlier incident can also be relevant conduct under the “common scheme or plan” prong of 1B1.3(a)(2);
although the government did not make this argument, the court makes it for them. Prior conduct is part of
a common scheme or plan if it is connected to offense of conviction by at least one common factor. Normally
same course of conduct covers a broader array of conduct than common scheme or plan, but this is one of the
“rare instances” in which acts not part of same course of conduct are nevertheless part of a common scheme
or plan (largely because of the identity of some of the participants).
Obliterated Serial Number + Possessing a Firearm in Connection with Possession (not Trafficking) Drugs
United States v. Justice, 679 F.3d 1251 (10th Cir. May 30, 2012).
The adjustment for possession of a firearm with an obliterated serial number in U.S.S.G. § 2K2.1(b)(4) applies
when the serial number has been made indecipherable or imperceptible; the serial number need not be
irretrievable for the enhancement to apply. That a crime lab is able to recover the serial number by smoothing
the metal and applying acid and water does not make the enhancement inappropriate: the serial number was
still obliterated. An enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection
with another felony applies to drug trafficking charges when the gun is “in close proximity to drugs.” Here
the drug charge was for possession, not trafficking, but the gun still facilitated the possession by
“emboldening” the defendant when he left the house with the drugs, so the enhancement applicable. If
defendant stays at home with his drugs and guns, or acquires gun after drugs and not connected to drugs, result
might be different than with the defendant “is out and about” with both drugs and gun loaded and within easy
reach.
Unwarranted Disparity
United States v. Gantt, 679 F.3d 1240 (10th Cir. May 30, 2012).
Court rejects argument that unwarranted disparity between defendant’s sentence (a substantial upward
variance from seven year guideline dictated by statute to twenty years) and that given to other defendants with
same charge and criminal history. This argument amounts to “saying that the district court did not consider
that it was imposing a nonguidelines sentence, a sentence different from what is usually imposed for the
offense.” But the district court, in considering the guidelines range (that in turn takes into account
un/warranted disparities), necessarily considered disparities: “[O]ne can say as a general rule that when a court
considers what the guidelines sentence (or sentencing range) is, it necessarily considers wether there is a
disparity between the defendant’s sentence and the sentences imposed on others for the same offense.” Only
minimal explanation required to defend variance from attack on this basis.
Calculating Value of Animals
United States v. Butler, 694 F.3d 1177 (10th Cir. Sept. 13, 2012).
For poaching offenses, U.S.S.G. § 2Q2.1 adds to the offense level based on fair market value of the animals.
An application note links market value to fair-market retail price, and permits a reasonable estimation if the
retail price is difficult to determine. Defendants were guides whose fee for a hunt included lodging and
provisions, and thus district court erred in using guiding fees as fair market value of deer alone. Guiding fees
cannot be taken as reasonable estimate of value of deer because the value of trophy deer easy to ascertain.
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Issue No. 4
Use of Peer-to-Peer File-Sharing and Enhancement for Distribution
United States v. Ramos, 695 F.3d 1035 (10th Cir. Aug. 27, 2012).
U.S.S.G.§ 2G2.2(b)(3)(F) provides 2-level enhancement where defendant engages in basic distribution of
child pornography. The enhancement does not require an intent to distribute, but rather applies to any act
related to the transfer of child pornography. Use of a peer-to-peer file-sharing program to download child
pornography with knowledge that “the program will deposit downloaded child-pornography files into a shared
folder accessible to other users” is thus distribution. The court leaves open the question whether government
could show distribution if user of peer-to-peer network had lesser degree of knowledge. Court assumes
arguendo that government must prove affirmative act to prove distribution, but finds that act in fact that
defendant continued to download after becoming aware that what he downloaded would automatically be
placed in shared folders. The fact that the eMule program at issue automatically stores downloaded images
in shared folders does not change outcome. Defendant does not have standing to challenge 5-year mandatory
minimum because that minimum had no effect on his sentence.
United States v. Ray, No. 11-3383 (10th Cir. Nov. 6, 2012).
Enhancement for distribution permissible under U.S.S.G. § 2G2.2(b)(3)(F) without proof that child
pornography was actually distributed or that defendant had intent to distribute in cases where defendant using
a peer-to-peer file-sharing program that puts images into shared folders. Neither does the defendant need to
know about the “distribution capability of the program he is using to view child pornography.” Sentencing
enhancements, unlike elements, do not necessarily have mens rea requirements: “We have repeatedly held
that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea
element, we should not interpret the guideline as containing such an element.” Slavish conformity to the
Guidelines is improper; deference is not, and without deference to Guidelines disparities and some mandatory
fix for them would result. Deference to Guidelines does not conflict with parsimony principle.
Improper to Manipulate Guidelines Range to Achieve Longer Sentence
United States v. Kieffer, 681 F.3d 1143 (10th Cir. June 11, 2012).
Reversal for multiple procedural errors in sentencing. District court felt guidelines sentence too low and put
parties on notice that would consider upward variance then continued sentencing. U.S.S.G. § 5G1.3(b)
requires that a judge impose a concurrent sentence when the defendant is serving an undischarged sentence
for an offense that is relevant conduct to the instant offense and increased the offense level of the instant
offense. In order to impose a consecutive sentence, the district court manipulated (panel’s word) the
calculation of the offense level, treating the prior sentence as criminal history rather than offense level. But
the district court can only use the prior sentence as part of the criminal history if it is not part of instant
offense, and here it was plainly relevant conduct.
Career Offender
United States v. Duran, --- F.3d ----, 2012 WL 4947031 (10th Cir. Oct. 18, 2012).
Under Armijo, 651 F.3d 1226 (10th Cir. 2011) to be a crime of violence for purposes of the residual clause
of U.S.S.G. § 4B1.2(a), a crime must be an intentional one—criminal recklessness is not enough. Texas
aggravated assault conviction is not a crime of violence because it allows mens rea of recklessness. The
requirement under Texas law that a deadly weapon be used or exhibited under this statute does not change
the outcome as Texas law holds that “purely reckless crimes can still involve the use of a deadly weapon.”
Physical Restraint
United States v. Joe, 696 F.3d 1066 (10th Cir. Oct. 16, 2012).
Defendants convicted of aggravated sexual abuse received enhancements both for physical restraint under
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Winter 2012
Issue No. 4
U.S.S.G. § 3A1.3 and for the use of force against the victim under § 2A3.1(b)(1). The physical force
guideline directs that it not be used if the offense guideline specifically incorporates this factor, or where the
unlawful restraint of a victim is an element of the offense itself. Noting the breadth of the Circuit’s definition
of physical restraint, the Court determines that it is incorporated into the offense of aggravated sexual assault
committed with the use of force.
B.
Changes to Guidelines
United States v. Osborn, 679 F.3d 1256 (10th Cir. May 25, 2012).
When a guidelines range is lowered subsequent to sentencing, a district court may under some circumstances
lower a sentence, but the decision remains within the judge’s sound discretion: “an ameliorative amendment
to the Guidelines in no way creates a right to sentence reduction.” The judge may still take into account the
3553 factors that influenced the original sentencing.
C.
Multiplicitous Sentences
United States v. Frierson, --- F.3d ----, 2012 WL 5290330 (10th Cir. Oct. 29, 2012).
An indictment is multiplicitous if multiple counts cover the same criminal behavior. Multiplicity is not fatal
to an indictment, but multiplicitous sentences fall afoul of double jeopardy clause. Here defendant convicted
of two conspiracies to distribute crack with other gang members, but jury not instructed that to convict on both
conspiracy counts it must find two separate agreements. Remanded with instructions to vacate conviction and
sentence on one or other count.
D.
Mandatory Minimum Sentences
1.
Armed Career Criminal Act/Crimes of Violence Under Guidelines
Consider Preserving
Scalia void for vagueness argument. See Sykes v. United States, 131 S. Ct. 2267, 2284 et seq. (2011).
Categorical Approach v. Modified Categorical Approach
United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. Jan. 18, 2012).
In determining whether a prior offense is a violent felony for ACCA purposes (or a crime of violence for
purposes of US.S.G. § 2L1.2), the court ordinarily looks only to the statute of conviction (the categorical
approach). When the statute of conviction covers violent felonies and other crimes, the court may look to
enumerated portions of the trial record to determine which part of the statute was the basis for the prior
conviction (modified categorical approach). Court here rejects defendant’s argument that recourse to modified
categorical approach permissible only if statute of conviction sets out different offenses (some violent, some
otherwise) in separate sections. Instead, “the modified categorical approach can be applied if one can find
language in the state statute that includes the elements necessary for an offense to be a violent felony,” in
addition to offenses that would not qualify.
United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir Feb. 10, 2012).
A court may use the modified categorical approach to determine whether a prior offense can serve as a
predicate for an enhancement (here under U.S.S.G.§ 2L1.2(b)(1)(C) as an aggravated felony) when the statute
of conviction is ambiguous because it reaches conduct that does and does not merit the enhancement. Court
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Issue No. 4
rejects argument that the modified categorical approach can be used only to determine which part of the
statute was at issue in the prior conviction. When the question is whether the prior conviction is a predicate
under the residual clause, such a narrow application of the modified categorical approach is appropriate: the
court looks at the elements of the underlying offense only. In determining whether a prior offense fits within
one of the “generic” offenses enumerated in the enhancement provision, a court may look beyond the statute
of conviction to determine what facts were necessarily found (or admitted) as part of the prior conviction, and
then determine whether those facts would satisfy the generic definition of an enumerated offense.
Predicate Burglary Offenses
United States v. Cartwright, 678 F.3d 907 (10th Cir. May 23, 2012).
Predicate burglary conviction for application of ACCA had jury instruction permitting conviction based on
entry of tool (but not person) into interior, so long as “the tool or instrument is capable of completing the
purpose of the intended crime.” (The panel envisions breaking window, using tool to drag bureau to window,
then using tool to steal watch on dresser.) A burglarious entry may be made by means of a tool, which was
included in the common law definition and which presents similar opportunities for dangerous confrontations
between burglar and burglee, bystander, or law enforcement. Defendant’s nolo contendere plea on another
burglary charge may also serve as a predicate since the information charged a generic burglary, which, coupled
with the verdict “show the requisite elements of generic burglary are met.” Under Oklahoma law, a nolo
contendere plea is functional equivalent of guilty plea and admits facts in information. Such a plea is properly
used as a previous conviction for ACCA purposes because the charges in information were narrowed to
include only predicate offenses.
United States v. Huizar, 688 F.3d 1193 (10th Cir. July 27, 2012).
Vagaries of California burglary statute preclude finding that conviction under state law a burglary of a
dwelling (and hence crime of violence for 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)). State
statute does not require unlawful entry; “one can burgle a place after being invited in.” State law also
recognizes an “informed consent” defense; there is no burglary if “the owner actively invite[d] the accused
to enter, knowing the illegal, felonious intention in the mind of the invitee.” Employing the modified
categorical approach, the court considers California information charging defendant with “unlawfully”
entering a building, but concludes that “it is possible the prosecution added the word ‘unlawfully’ to rule out
this defense.” Since the court cannot be certain that the prior conviction was for a generic burglary, the
enhancement was improperly applied.
United States v. Maldonado, --- F.3d ----, 2012 WL 5192749 (10th Cir. Oct 22, 2012).
California’s first degree burglary statute does not require an unprivileged entry and so is not a violent felony
for ACCA purposes under the generic definition of burglary. It does qualify as a violent felony under the
residual clause, however, as it involves conduct that presents a serious potential risk of physical injury to
another. In footnote, court notes that “it is unclear whether the modified categorical approach could be
applied in a residual clause case,” observing that the Supreme Court has used only the categorical approach
in residual clause cases, but has not explicitly foreclosed using modified categorical approach in residual
clause case. The ACCA does not require the exact same degree of risk as that of an enumerated offense.
Predicate Offenses on Different Occasions
United States v. Delossantos, 680 F.3d 1217 (10th Cir. May 30, 2012).
The Armed Career Criminal Act applies when there are three qualifying prior offenses committed on
occasions different from one another. Defendant argued that four drug sales to police within the same month
were a single criminal episode and should be counted as such. A police officer’s decision not to arrest after
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Issue No. 4
first sale and to conduct additional ones does not make the sales a single episode. Defendant had “meaningful
opportunity to cease his illegal conduct” between sales, and decided to make subsequent sales.
Indecent Proposal to a Child a Crime of Violence
United States v. Martinez-Zamaripa, 680 F.3d 1221 (10th Cir. June 1, 2012).
Upholds 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for illegal reentry following conviction
for crime of violence based on prior Oklahoma conviction for indecent proposal to a child. One of the
enumerated offenses in the definition of crime of violence for § 2L1.2 is “sexual abuse of a minor.” Looks
at differences between application of modified categorical approach if offense crime of violence by virtue of
being enumerated offense (more expansive—looking what jury had to find/defendant necessarily admitted
to see if fits definition of enumerated offense) vs. by virtue of having as an element the use of force (limited
to seeing which part of statute charged under). Crime related to sexual act with child but not culminating in
sexual act is not excluded from category of sexual abuse. Physical contact is also unnecessary as psychological
harm can occur without physical contact.
United States v. Sandoval, --- F.3d ----, 2012 WL 4784466 (10th Cir. Oct. 9, 2012).
Prior conviction for second-degree assault under Colorado statute that included mitigation provision for acts
committed in the heat of passion still a violent felony for ACCA purposes. The mitigation provision provides
that the act was committed without deliberation and upon provocation that would provoke an irresistible
passion in a reasonable person, and defendant claimed that the act accordingly did not require the purposeful
and aggressive conduct identified in Begay v. United States, 553 U.S. 137 (2008). The argument fails because
Sykes v. United States, 131 S. Ct. 2267 (2011) limits Begay to strict liability (or reckless or negligent)
offenses, leaving assessment of the risk posed by the prior crime as the test in most cases. And doesn’t matter
anyway because conduct still violent and aggressive.
Use of Peer-to-Peer File-Sharing and Enhancement for Distribution
United States v. Ramos, 695 F.3d 1035 (10th Cir. Aug. 27, 2012).
Defendant does not have standing to challenge 5-year mandatory minimum because that minimum had no
effect on his sentence.
2.
§ 851 Information
United States v. Cornelius, --- F.3d ----, 2012 WL 4075877 (10th Cir. Sept. 18, 2012).
District court granted defendant’s motion to “suppress” evidence relating to a prior conviction he asserted was
obtained through use of illegally obtained evidence. It was still appropriate to use that conviction in
sentencing to support § 851 enhancement. Prior conviction was valid “in the sense that it was lawfully entered
and has not been overturned.”
E.
Restitution & Forfeiture
United States v. Butler, 694 F.3d 1177 (10th Cir. Sept. 13, 2012).
Conspiracies to violate the Lacey Act (prohibiting some trafficking in wildlife) are offenses against property
for purposes of MVRA. Wildlife is the property of the state, and the state can be a victim under the MVRA.
District court’s restitution order permissible. Failures to tag deer prevent state from managing its herds and
can lead to overharvesting.
Winter 2012
F.
Page 21
Issue No. 4
Supervised Release/Probation Condition
Application of Tapia to Sentences Imposed on Revocation of Supervised Release
United States v. Mendiola, --- F.3d ----, 2012 WL 4841278 (10th Cir., Oct. 12, 2012).
In United States v. Tsosie, the Tenth Circuit distinguished between initial imposition of sentence and sentence
imposed upon revocation of supervised release, holding that rehabilitative concerns could not drive the former
but could the latter. In Tapia, USSC recently held that a sentencing court cannot impose or lengthen a prison
term to promote rehabilitation, a determination Mendiola applies to overrule Tsosie. A court cannot
impose/lengthen a revocation sentence to promote rehabilitation.
Sentence Upon Repeated Revocations
United States v. Lamirand, 669 F.3d 1091 (10th Cir. Jan. 5, 2012).
Defendant’s supervised release revoked and sentenced to one month imprisonment with a new 6-month term
of supervised release to follow. Revoked again and sentenced to one year imprisonment despite defendant’s
objection that the longest term of imprisonment that could be imposed was equal to the new term of
supervised release, that is, six months. The Court disagrees: under the plain language of 18 U.S.C. § 3583(b),
the statute determines the possible length of a sentence upon revocation of supervised release, not the prior
supervised release term imposed by the sentencing court. Court also flags the possibility of arguing that “the
offense that resulted in the term of supervised release” in cases of multiple revocations could be the last
revocation, rather than the underlying offense, but does not reach the argument as it was inadequately
presented.
United States v. Hunt, 673 F.3d 1289 (10th Cir. March 21, 2012).
The maximum term of supervised release that generally may be imposed for a Class C felony is three years
under 18 U.S.C. §3583(b)(2). Another provision limits the maximum term of imprisonment that can be
imposed on revocation of supervised release for a class C felony to two years. § 3583(e)(3). The Tenth
Circuit decided in United States v. Hernandez, 655 F.3d 1193 (10th Cir. 2011), that the limit in § 3583(e)(3)
does not require a district court to aggregate sentences served on prior revocations of supervised release in
order to stay under the limit imposed by § 3583(e)(3) on a current violation sentence. Court decides here that
the limitation under § 3583(b)(2) does not require such aggregation either. In other words, the sum of all
prison terms imposed on multiple violations of supervised release does not need to be smaller than the
maximum term of supervised release permitted by statute: here, three years. § 3583 prevents the cycle from
continuing indefinitely since it requires aggregation of prior terms of revocation imprisonment in assigning
new terms of supervised release.
United States v. Handley, 678 F.3d 1185 (10th Cir. May 15, 2012).
When a term of supervised release is revoked and a term of imprisonment is imposed, a new term of
supervised release can also be imposed, but 18 U.S.C. § 3583(h) provides that the new term of supervised
release “cannot exceed the term of supervised release authorized by statute for that offense, less any term of
imprisonment imposed on revocation.” (emphasis added) In the ordinary case, this provision prevents a cycle
of supervised release violation, imprisonment, new supervised release violation, new imprisonment, new
supervised release, ad infinitum. But where there is no statutory maximum term of supervised release (as for
drug crimes under 21 U.S.C. § 841), the maximum term is life. And since the maximum term is life, the
infinite regress of which the defendant complains is a distinct possibility.
Winter 2012
Page 22
Issue No. 4
Chronological Remoteness of Priors to Serve as Basis for Sex-Offender-Supervised-Release Conditions
for Non-Sex Crime
United States v. Dougan, 684 F.3d 1030 (10th Cir. July 10, 2012).
It is permissible to impose sex-offender supervised-release conditions when conviction is not for sex crime,
but conditions must still be reasonably related to defendant’s history and characteristics. Prior convictions
must not be too remote if they are to serve as a basis for imposition of sex-offender-supervised-release
conditions. Government argues that the seventeen years between defendant’s last sex-offense conviction and
present (non sex crime) should not all be considered in assessing remoteness of prior conviction as he spent
ten of those years in prison. Court notes that he could have committed sex crimes in prison, but did not, but
temporizes: “while we do not discount them entirely, we do not treat [defendant’s] periods of incarceration
since his 1994 conviction the same as his periods out of prison.”
Broad Conditions; interference with employment
United States v. Butler, 694 F.3d 1177 (10th Cir. Sept. 13, 2012).
Court vacates special condition of supervised release that prevents defendant in poaching case from hunting
or fishing (or guiding or accompanying anyone engaged in those activities). Noting that conditions that limit
employment opportunities are subject to special scrutiny and that they must “bear a reasonably direct
relationship to the crime and are reasonably necessary to protect the public.” District court must also find the
condition is minimally restrictive as to time and extent. Defendant here worked in commercial deer operation.
“The restrictions imposed would plainly prevent him from continuing in this position or others similar to it,
and the sentencing record is devoid of any finding that the ‘occupational restriction is the minimum restriction
necessary.’”
Permissible Length of Term of Supervised Release
United States v. Joe, 696 F.3d 1066 (10th Cir. Oct. 16, 2012).
Aggravated sexual abuse is a Class A felony, and the associated term of supervised release under the
Guidelines would be 3–5 years. U.S.S.G. 5D1.2(c). But the term here cannot be less than any statutorily
required term of supervised release; the statute here requires a minimum term of 5 years and maximum of life.
Defendant argues that the minimum and maximum here is 5 years, a reading the panel describes as
“plausible.” (Government sees it rather differently.) District court did not plainly err in sentencing defendants
to lifetime term of supervised release since because there is no pertinent precedent addressing issue. If
properly preserved, however, the panel expressed some interest in it.
Especially Deferential Review
United States v. Vigil, --- F.3d ----, 2012 WL 4497354 (10th Cir. Oct. 2, 2012).
Sentences imposed upon revocation of supervised release are informed by Chapter 7 of the Guidelines, which
are policy statements only and not guidelines. Even before Booker et al., review of sentences under these
policy statements was especially deferential. District courts therefore enjoy considerable discretion to vary
from them: “[A] court does not need to find severe or exceptional circumstances to impose a sentence above
the range suggested in the Chapter 7 policy statements, which are not mandatory and even less compelling
than established Guidelines.”
G.
Pronouncing Sentence
Defendant's Right to Address Court Before Sentence is Pronounced
United States v. Mendoza-Lopez, 669 F.3d 1148 (10th Cir. Feb. 24, 2012).
District court did not prematurely adjudge sentence (violating defendant’s right to allocution) by announcing
Winter 2012
Page 23
Issue No. 4
his intention to sentence within the guidelines range. District court did plainly err, though, by telling
defendant he could address the court regarding where in the guidelines range the court should sentence him,
thereby indicating an unwillingness to listen to anything defendant might offer to support a below-Guidelines
sentence. Tenth Circuit precedent “appears to” presume that allocution error affects substantial rights (3rd
prong of plain error review). Argument fails fourth prong, however; defendant was still allowed to address
court and court considered his statement, so defendant has not shown that the error is “particularly egregious”
or would result in a “miscarriage of justice” if uncorrected.
United States v. Frost, 684 F.3d 963 (10th Cir. July 10, 2012).
Where Court announces an intended sentence before allowing defendant to allocute, there is not plain error
if the court invites the defendant/counsel to comment and they do so: “Where the court personally invites the
defendant to present information to mitigate his sentence, and the defendant in fact does so, fairness not
seriously affected, notwithstanding the presumption of prejudice. . . . even if the court’s statements in theory
could have effectively communicated that his sentence had already been determined, [defendant’s] conduct
shows that the court’s statements did not in fact communicate that to him.”
H.
Post-Sentencing
14 Days Means 14 Days Under Rule 35
United States v. McGaughy, 670 F.3d 1149 (10th Cir. Feb. 29, 2012).
Rule 35 gives district court 14 days to correct certain enumerated obvious sentencing errors. The rule is
jurisdictional, so if a district court does not rule within 14 days, there is no longer jurisdiction to do so.
Timely filing a Rule 35 motion does not stop the clock.
I.
Constitutional Speedy Trial Claim Based on Delay Between Conviction and Entry of
Judgment
United States v. Gould, 672 F.3d 930 (10th Cir. Feb. 28, 2012).
Sixth Amendment speedy trial claim based on delay between conviction and entry of judgment. (623 days
between sentencing and entry of final judgment; 1388 days between conviction and entry of final judgment.
During the period between conviction and entry of judgment, defendant was held in administrative segregation
due to law enforcement background.) Tenth Circuit precedent recognizes constitutional speedy trial right
from arrest to sentencing; court assumes without deciding that the right extends until entry of final judgment.
Prosecutor told district court that prosecutor had called court regarding its delay in entering final judgment,
but didn’t file anything for fear of inspiring defendant to assert speedy trial violation. Since defendant did
not argue to district court that this was purposeful delay, he has forfeited the argument on appeal. Defendant’s
failure to demand entry of final judgment weighs against finding of violation. A failure to show prejudice
from the delay is nearly always fatal to a claim by one already convicted, and the court does not consider the
“entirely speculative” claim that conditions of incarceration were altered by the delay.
VIII. APPEAL
A.
Preservation
United States v. McGehee, 672 F. 3d 860 (10th Cir. Feb. 22, 2012).
Defendant affirmatively indicated at sentencing that he had no objections to the PSR, which recommended
that he not receive a reduction for acceptance of responsibility, but instead referred to U.S.S.G. § 3E1.1 in his
Winter 2012
Page 24
Issue No. 4
sentencing memorandum and argued that he should receive a 2-level reduction (despite having gone to trial).
District court therefore reasonably interpreted his argument as one for a variance. The defendant accordingly
waived his procedural reasonableness argument that his guidelines sentence was improperly calculated and
cannot pursue it on appeal. (If the argument had been only forfeited, he could have appealed it under the plain
error standard of review.) (The government neglected to raise the preservation issue until oral argument,
which the Court construes as forfeiture, and the court exercises its discretion to reach an issue merely
forfeited.) Court goes on to find he could not have prevailed on plain error in any event.
B.
Interlocutory Appeals
United States v. Pickard, 676 F.3d 1214 (10th Cir. April 16, 2012).
Under the collateral order doctrine an interlocutory order may be appealed if it 1) conclusively determines a
question, 2) that is important and completely separate from the merits, and 3) is effectively unreviewable on
appeal from a final judgment. In addition, the disputed question must be a claim of right (as in a claim of
qualified immunity).
C.
Harmless Error
United States v. Benard, 680 F.3d 1206 (10th Cir. May 25, 2012).
District judge erred in refusing to suppress statements defendant made after arrest and without benefit of
Miranda warnings. The government has the burden in such circumstances to show that the error was harmless
beyond a reasonable doubt, and the majority concludes that “the government will very rarely be able to make
this showing in the context of a conditional plea of guilty where the trial court erroneously fails to suppress
evidence relating to one or more of the counts of conviction.” This is because it will be difficult for the
government to show what influence an erroneous denial of motion to suppress had on a defendant’s decision
to plead guilty. That the error had no effect on the sentence does not make it harmless error. Remand is not
limited to count affected by erroneously admitted statements because guilty plea a package deal involving all
the counts. There is a partial dissent on the majority’s harmlessness conclusions.
D.
Appellate Jurisdiction
No Jurisdiction Over District Court’s Recommendation to BOP that Defendant Get Sex-Offender
Treatment in Prison
United States v. Dougan, 684 F.3d 1030 (10th Cir. July 10, 2012).
Court of Appeals does not have jurisdiction to review district court’s recommendation to BOP that defendant
receive sex-offender treatment while in prison because the recommendation is not binding on BOP and so is
not a final decision subject to appeal under 28 U.S.C. § 1291 or a final sentence appealable under 18 U.S.C.
§ 3742.
“A guilty plea waives all defenses except those that go to the Court’s subject-matter jurisdiction and the
narrow class of constitutional claims involving the right not to be haled into court.”
United States v. de Vaughn, 694 F.3d 1141 (10th Cir. Aug. 31, 2012).
Defendant pled guilty unconditionally, then claimed on appeal that charging documents do not state an offense
and that statute unconstitutional as applied. Generally speaking (although court acknowledges two
exceptions) an unconditional guilty plea waives all non-jurisdictional claims on appeal. First, Court addresses
whether either argument is jurisdictional; panel opens circuit split on question of whether a defective
Winter 2012
Page 25
Issue No. 4
indictment (here indictment alleged not to have charged a crime) has a jurisdictional dimension; in the Tenth
defects in indictment are not jurisdictional defects, and so an unconditional guilty plea waives such defects.
As-applied constitutional claims are also not jurisdictional and are accordingly waived by unconditional guilty
plea; there is a circuit split on this issue as well. The better statement of the rule would be: “A guilty plea
waives all defenses except those that go to the court’s subject-matter jurisdiction and the narrow class of
constitutional claims involving the right not to be haled into court.” Those two exceptions are due-process
claims for vindictive prosecution and double jeopardy claims evident on face of indictment. The claims here
do not fit within exceptions. Additional complication, however, is that government failed to raise defendant’s
guilty plea as waiver; Court determines government can waive waiver (also a circuit split here), and so
proceeds to merits. Proceeding at last to plain-error review, the court discovers defendant failed to address
three of four prongs of test.
United States v. Doe, --- F.3d ----, 2012 WL 5374326 (10th Cir. Nov. 2, 2012).
Confidential informant pled guilty unconditionally after district court ruled he had not had an immunity
agreement with police. Court rejects attempt to avoid waiver by arguing that the immunity agreement affected
court’s subject matter jurisdiction. Court’s oft-repeated statement that unconditional guilty plea waives all
non-jurisdictional defenses is technically incorrect as USSC has recognized two non-jurisdictional claims not
waived by unconditional guilty plea (double jeopardy evident on face of indictment and due process claim
for vindictive prosecution). Neither at issue here. Court also rejects outrageous conduct claim (even if not
waived), offering useful primer on all the things government can do without behaving outrageously.
IX.
PARTICULAR OFFENSES
Indian Casino and Crimes Against the United States
United States v. Bryant, 664 F.3d 831 (10th Cir. Jan. 5, 2012).
A crime against an Indian casino is a crime against the United States for purposes of the aiding and abetting
statute, which treats as a principal anyone who aids or abets an offense against the United States. Theft from
the casino was thus a crime against the United States.
Felon in Possession
United States v. Games-Perez, 667 F.3d 1136 (10th Cir. Jan 23, 2012).
Following United States v. Capps, 77 F.3d 350 (10th Cir. 1996), panel holds that in § 922(g) prosecution it
is immaterial whether defendant knows he is a felon: only the gun-possession element has a mens rea
requirement. One judge concurs in the judgment, but points out that § 924(a)(2) penalizes only those who
knowingly violate § 922(g), and that Flores-Figueroa and general presumptions counsel application of this
mens rea requirement to all (non-jurisdictional) elements of § 922(g). He also points out that individual gun
ownership is now constitutionally protected and that “Congress might require the government to prove that
the defendant had knowledge of the only fact (his felony conviction) separating criminal behavior from not
just permissible, but constitutionally protected conduct.” None of this matters, though, in light of Capps.
Knowledge of Felony Status for Conviction as Felon in Possession
United States v. Games-Perez, 695 F.3d 1104 (10th Cir. Sept. 17, 2012) (en banc).
Published concurrence dissent from denial of petition for rehearing en banc. Based on dissent in his case,
defendant argued in petition for rehearing that Capps, Tenth Circuit precedent holding that the elements of
922)g)(1) do not include a defendant’s knowledge that he is a felon, was wrongly decided. Concurrence
(Murphy, J.) argues that defendant did not make argument that Capps wrongly decided to the panel and
petitioners are not allowed to raise new arguments in petitions for rehearing en banc. Moreover, the
Winter 2012
Page 26
Issue No. 4
concurrence points out that every other circuit to have considered the question agrees with Capps, and that
most felons know they are felons in any event. The dissent (Gorsuch, J.) argues that the statute’s requirement
that prohibited acts be done knowingly applies to status as felon rather than just to gun possession. The
dissent also disagrees with the waiver/forfeiture argument but indicates that “wary defense counsel,” will in
the future “undertake the—otherwise entirely futile—gesture of asking district courts and panels of this court
to overrule Capps.”
Definition of Firearm and Restoration of Civil Rights
United States v. Hoyle, --- F.3d ----, 2012 WL 3667430 (10th Cir. Aug. 28, 2012).
A weapon need not be operable to be a firearm for purposes of § 922(g), so long as it is designed to expel a
projectile due to action of explosive. The government need not put on evidence that gun test fired to show
that it is a “firearm” under the statute; evidence here of experienced officer’s observations sufficient to support
jury’s verdict. A prior conviction is not a predicate under the ACCA if the defendant has his civil rights
restored, a determination made with reference to state law as a whole, not just a certificate of restoration of
civil rights. Restoration, for ACCA purposes, must include right to possess firearms. Defendant’s right to
possess firearms had been restored by operation (of then applicable) Kansas law by the time he possessed the
gun at issue in present federal prosecution, so two of his prior convictions could not serve as predicates for
ACCA. The clock for restoration of civil rights began to run when defendant was released from state custody
for the offense in question, not when he was released from federal sentence that had been running
concurrently. Which provision of Kansas law applies depends on construction of prosecutor’s assurance at
plea colloquy (despite later factual proffer) that particular facts were taken out of the plea agreement.
Stolen Valor Act
United States v. Strandlof, 684 F.3d 962 (10th Cir. Jan. 27, 2012) (abrogated by United States v. Alvarez, 567
U.S. ––––, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012).
Over 106 pages, divided panel upholds constitutionality of Stolen Valor Act against facial and as-applied
challenges. USSC found Act to be content-based restriction on speech violating First Amendment.
Definition of Playground for Purposes of Statutes Enhancing Penalties for Drug Distribution
United States v. West, 671 F.3d 1195 (10th Cir. Feb. 14, 2012).
A playground, for purposes of statutes criminalizing distribution of drugs in or near one, is defined by statute
as containing “three or more separate apparatus intended for the recreation of children.” The statutory
definition of playground apparatus supplies an illustrative list of examples that includes “sliding boards,
swingsets, and teeterboards,” but the list is not exhaustive and a baseball field with backstop constitutes an
apparatus as well. The canon of ejusdem generis (“of the same kind or class”) does not apply since the statute
indicates that the definition of apparatus includes, but is not limited to the examples given. The concurrence
notes a split in authority as to whether this canon can apply to statutes containing “including but not limited
to.”
Transporting Aliens
United States v. Franco-Lopez, 687 F.3d 1222 (10th Cir. July 23, 2012).
18 U.S.C. §1324 penalizes whomever transports an alien who “has come to, entered, or remains in the United
States” illegally. (Emphasis added.) Court rejects defendant’s argument that “or” really means “and”; the
government does not have to prove that a defendant has “entered” the United States illegally if they have
proven the alien either “has come to” or “remains in” the United States illegally. What is required is proof that
the alien “was present in violation of law,” and proof of entry is sufficient, but not necessary, to prove
unlawful presence. Court also amends second element of pattern instruction for 8 U.S.C. § 1324.
Winter 2012
Page 27
Issue No. 4
RICO
United States v. Harris, 695 F.3d 1125 (10th Cir. Sept. 18, 2012).
The existence of an enterprise is not an element of a conspiracy to commit a substantive RICO violation under
§ 1962(d). A defendant need not have personally committed or agreed to commit the requisite predicate acts
to be guilty of conspiracy under § 1962(d); this section has no overt act requirement and is thus “even more
comprehensive than the general conspiracy offense in § 371.” Court also rejects argument that Crips too
loosely organized to constitute an enterprise. Conviction under RICO requires an enterprise (an entity) and
a pattern of racketeering activity (series of criminal acts) as separate elements. The Crips are an associationin-fact enterprise, a “continuing unit that functions with a common purpose.” Court clarifies that mere Crips
membership is not enough to be guilty of conspiracy, nor is non-membership enough to exclude possibility
of joining conspiracy.
Aiding and Abetting Use of Firearm in Crime of Violence
United States v. Rosemond, 695 F.3d 1151 (10th Cir. Sept. 18, 2012).
Jury instructed on government’s two theories: either defendant fired a gun during drug deal or he aided and
abetted one of his cohorts. Jury not required to specify under which theory they found him guilty. Jury
correctly instructed on aiding and abetting in use of firearm in crime of violence, which requires defendant
to know colleague armed and to participate (knowingly and actively) in underlying crime. The same rule
applies to aiding and abetting when drug crime rather than crime of violence at issue. Most other circuits
require some sort of facilitation or encouragement in use of firearm, but the Tenth does not.
Jurisdictional Element of 18 U.S.C. § 2252 and 2252(A)
United States v. Sturm, 672 F.3d 891( 10th Cir. Feb. 24, 2012) (en banc).
Government may prove jurisdictional element of § 2252 and § 2252A with evidence that the “substance” of
an image of child pornography traveled in interstate commerce. The government does not have to prove that
the particular image (digital or otherwise) possessed by defendant so traveled. “Visual depiction” means the
“the substantive content of an image,” and all copies of the same substantive content are the same visual
depiction.
United States v. Kieffer, 681 F.3d 1143 (10th Cir. June 11, 2012).
An individual’s use of the internet, standing alone, is not enough to establish that a web transmission traveled
in interstate commerce. But two end users in different states make an internet transmission inference
permissible.
Child Pornography and Peer-to-Peer Downloads/Distributions
United States v. Haymond, 672 F.3d 948 (10th Cir. March 6, 2012).
Evidence that defendant downloaded child pornography from LimeWire is sufficient to show he knowingly
possessed the images and had actual control over them. “Volitional downloading” is different from the
automatic caching process at issue in United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011), which was
found to be inadequate for knowing possession. Possession of child pornography requires knowledge that
the images possessed “depict[] minors engaged in sexually explicit conduct.” That knowledge can be inferred
from defendant’s use of search terms associated with child pornography. Information in affidavit for search
warrant not stale although 107 days passed between investigation and obtaining warrant.
Winter 2012
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Issue No. 4
Receipt/Possession
United States v. Sturm, 673 F.3d 1274 (10th Cir. March 13, 2012) (on remand to original panel after rehearing
en banc).
The difference between possession and receipt of child pornography is not defined under the statute, 18 U.S.C.
§ 2252A. It is not necessary to have an intention to distribute to be guilty of receipt. Congress identified
different harms associated with receipt and possession and there are differences between knowing receipt and
knowing possession that distinguish them. Conviction for possession and receipt does not violate prohibition
on Double Jeopardy because each conviction supported by different conduct, that is, at least one image was
different under the possession and receipt counts. The fact that all the images on same hard drive does not
alter conclusion.
Under the Influence When Flying Commercial Carrier
United States v. Cope, 676 F.3d 1219 (10th Cir. May 1, 2012).
A person need not exhibit outward signs of impairment to be under the influence for purposes of § 342.
Under the influence has its ordinary meaning, since not defined by statute. The evidence here included
defendant’s admission that he had had a fair bit to drink night before flight, smelled like alcohol during flight,
and had red eyes and a puffy face before the flight. He also had a relatively high blood alcohol level when
tested after flight.
Bank Fraud
United States v. Irvin, 682 F.3d 1254 (10th Cir. March 22, 2012).
A false statement is material in a bank fraud charge if it is capable of influencing or has a tendency to
influence the decision-making body, so despite evidence here that the representations did not influence the
bank at all, the representations could have done so and are therefore material. Materiality is an objective
quality, not a subjective one.
Bans on Importation of Some Drugs and Pharmaceutical Ingredients
United States v. Bader, 678 F.3d 858 (10th Cir. May 3, 2012).
Reversal of several counts of conviction because jury instruction permitted jury to convict on alternative
ground not charged. Offers some guidance as to differences between finished drugs and active pharmaceutical
ingredients in context of bans on importation of particular drugs/ingredients. The mens rea for conviction
under 18 U.S.C. § 545, smuggling goods into the United States, is knowingly bringing in merchandise
contrary to law. A defendant need not know the type of merchandise he is importing.
Constitutionality of Prohibiting Gun Possession by Illegal Aliens
United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. May 7, 2012).
Court applies intermediate scrutiny to 18 U.S.C. § 922(g)(5), prohibiting gun possession by illegal aliens, and
rejects Second Amendment challenge. Court acknowledges complexities, legal and moral, of determining
whether “the people” whose right to bear arms is protected by the Second Amendment includes illegal aliens,
and so dodges the constitutional question by assuming that there is such a right but that the law is substantially
related to important government end. The opinion does not opine on possible Second Amendment rights of
lawfully present aliens.
General Crimes Act and Test for Determining if Person is non-Indian
United States v. Diaz, 679 F.3d 1183 (10th Cir. May 8, 2012).
Defendant charged with leaving scene of accident resulting in great bodily harm or death, where accident took
place in Indian country. For federal jurisdiction under General Crimes Act, 18 U.S.C. § 1152, either the
Winter 2012
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Issue No. 4
victim or the defendant must be a non-Indian. Two-part test for determining if one is Indian requires both a
factual finding that person has “some Indian blood,” and that the person has been recognized as Indian by tribe
or federal government. Victim’s father’s testimony that he had researched genealogy of his and wife’s
families for “several hundred years,” and that they were not Indian, and that his son was never enrolled in tribe
or pueblo was adequate. DNA evidence helpful but not necessary. Government is not required to produce
evidence from tribal officials to disprove that victim a member of tribe.
Interfering with Oil and Gas Leases
United States v. DeChristopher, No. 11-4151 (10th Cir. Sept. 14, 2012).
30 U.S.C. § 195(a)(1) prohibits organizing or participating in a scheme, arrangement, plan or agreement to
interfere with statutes governing oil and gas leasing. Relying on the dictionary definitions of the words, the
court concludes that group activity is not required to violate the statute; an individual can violate § 195(a)(1)
all by him or herself. Although a defendant must knowingly violate the statute, he need not know the specific
provisions being violated. Evidence of whether the BLM had complied with applicable federal law and
regulations in conducting the sale was irrelevant and properly excluded. Court finally rejects claim of
retaliatory sentencing for exercise of free speech rights. Sentencing courts free to consider wide range of
information and there is no per se bar to consideration of beliefs and associations protected under First
Amendment. Beliefs must be relevant to issues at sentencing, however. Here court considered defendant’s
advocacy of civil disobedience as relevant to respect for the law and deterrence. There is a dissent on whether
or not group activity is required by the language of § 195(a)(1).
X.
POST CONVICTION
Bivens/§ 2241/Habeas
Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. May 1, 2012).
Challenges to conditions of confinement brought under Bivens, 403 U.S. 388 (1971), not under 28 U.S.C. §
2241, which addresses execution of sentence. District court lacks jurisdiction under § 2241 to address
petitioner’s challenge to place of confinement (=conditions of confinement). “The fundamental purpose of
a § 2241 habeas proceeding is to allow a person in custody to attack the legality of that custody, and the
‘traditional function of the writ is to secure release from illegal custody.’” A prisoner “who challenges the fact
or duration of his confinement and seeks immediate release or a shortened period of confinement, must do
so through an application for habeas corpus. In contrast, a prisoner who challenges the conditions of his
confinement must do so through a civil rights action.”
Rule 60(b) v. Second or Successive Habeas
In re Pickard/In re Apperson, 681 F.3d 1201 (10th Cir. June 18, 2012).
A defendant who has lost a § 2255 motion for habeas relief may bring a successive habeas motion in the Court
of Appeals, “subject to the almost insurmountable obstacles erected by 28 U.S.C. § 2244(b)(2)(B),” or a rule
60(b) motion in the district court, depending on the nature of the claim. A claim is a successive habeas claim
if it “depends on a determination that the [district] court . . . incorrectly ruled on the merits in the habeas
proceeding.” A claim that challenges the integrity of the habeas proceeding is a Rule 60(b) motion. The fact
that it will lead to habeas petition does not make a motion improper under Rule 60(b) since that is the purpose
of the rule.
Winter 2012
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Issue No. 4
“Extraordinary Diligence” and Time to File Habeas
United States v. Denny, 694 F.3d 1185 (10th Cir. Sept. 24, 2012).
A habeas petitioner has one year to bring a habeas claim from inter alia, “the date on which the facts
supporting the claim or claims presented could have been discovered through the exercise of due diligence.”
28 U.S.C. § 2255(f)(4). Court rejects argument that petitioner should have been given more than a year based
on his “extraordinary diligence” in discovering claim in first place. The reward for discovering a claim is
making a claim and getting relief, not getting more time to make the claim.
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United States Supreme Court Update, 2011-2012 Term
Smith v. Cain, 132 S.Ct. 627 (January 10, 2012)
The substantial Brady claims in the case require a reversal of the petitioner’s conviction. Evidence is
“material” under Brady if there is a reasonable probability that, had the evidence been disclosed, the result
would have been different. “Reasonable probability” does not require a finding that a defendant would
more likely than not have been acquitted; rather, it requires only that confidence in the outcome be
undermined in light of the evidence.
Perry v. New Hampshire, 132 S.Ct. 716 (January 11, 2012)
The Court clarifies that due process does not require pretrial screening for fundamental fairness of
eyewitness identification testimony unless officials are responsible for an unnecessarily suggestive
identification process. Where the witness’ identification of defendant was not the result of official action,
due process does not apply, regardless of how suggestive the circumstances may have been. The rule
excluding evidence of a suggestive lineup is in place to deter officers from creating unfair identifications,
not to generally restrict the use of questionable evidence.
United States v. Jones, 132 S.Ct. 945 (January 23, 2012)
The installation of a GPS tracking device on the exterior (undercarriage) of defendant’s vehicle was a
“search” within the meaning of the Fourth Amendment. To reach this result, the majority relied heavily
on the idea that the Fourth Amendment was originally intended to protect property rights and that the
government committed a trespass by installing the device. By placing the tracking device on the
defendant’s vehicle (an “effect” protected by the Fourth Amendment), the “Government physically
occupied private property for the purpose of obtaining information.” The court had “no doubt that such a
physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment
when it was adopted.” The Court did not reach the issue of whether the warrantless search was
reasonable because the government did not raise that argument below.
Reynolds v. United States, 132 S.Ct. 975 (Jan. 23, 2012)
SORNA’s registration requirement did not apply to those whose conduct occurred before SORNA’s
effective date (July 27, 2006) until the Attorney General promulgated an interim rule specifying that the
Act applied to pre-Act offenders. The interim rule was promulgated February 28, 2007.
Howe v. Fields, 132 S.Ct. 1181 (February 21, 2012)
While serving a jail sentence, defendant was escorted by a corrections officer to a conference room where
two sheriff's deputies questioned him about allegations that, before he came to prison, he had engaged in
Winter 2012
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Issue No. 4
sexual conduct with a 12–year–old boy. In order to get to the conference room, Fields had to go down one
floor and pass through a locked door that separated two sections of the facility. Fields was questioned for
between five and seven hours, although he was told he could leave the room. There is no categorical rule
that questioning of a prisoner is always custodial when the prisoner is removed from the general prison
population and questioned about events that occurred outside the prison, and, in fact, a prisoner’s status of
incarceration is not enough to constitute Miranda custody. Taking a prisoner aside for questioning does
not necessarily convert a noncustodial situation to one in which Miranda applies, and questioning a
prisoner about criminal activity that occurred outside the prison does not necessarily convert a
noncustodial situation to one in which Miranda applies. In this case, the defendant was not taken into
custody when he was escorted from his cell and interviewed in conference room within prison.
Kawashima v. Holder, 132 S.Ct. 1166 (February 21, 2012)
Violations of 26 U.S.C. §§ 7206(1) and (2), which preclude making (or assisting in the making of) a false
tax return, are crimes “involv[ing] fraud or deceit” under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore
aggravated felonies for purposes of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., when
the loss to the government exceeds $10,000.
Messerschmidt v. Millender, 132 S.Ct. 1235 (February 22, 2012)
Officers are entitled to qualified immunity for executing a search warrant for firearms and evidence of
gang activity in a home after a victim reported that the suspect had threatened her with a gun.
Lafler v. Cooper, 132 S.Ct. 1376 (March 21, 2012)
Missouri v. Frye, 132 S.Ct. 1399 (March 21, 2012)
Lafler: Defendant was given an offer of 51-85 month sentence in an attempted murder/assault case.
Defendant even expressed a desire to plead, in a communication with the court. Counsel advised against
pleading, based a clearly mistaken belief that because the victim had only been shot below the waist, that
the government would not be able to prove intent to kill. Based on this advice, defendant rejected the plea
offer, went to trial, lost, and was sentenced to a mandatory 185-360 month sentence.
Frye: Defendant was charged with driving on a revoked license, a felony due to prior convictions.
Government offered a favorable plea deal (misdemeanor and 90 days), which counsel did not convey to
the client. Within a few weeks, defendant was arrested again for the same offense and ended up pleading
without a deal and was sentenced to three years.
The Court (5-4) holds that the right to effective assistance of counsel extends to the plea negotiation
process, and the Sixth Amendment requires a remedy be provided when defense counsel fails to properly
advise defendants as to the existence and/or desirability of a plea offer. The Court emphasizes the
practical truth of criminal prosecution, which is that it is “a system of pleas, not a system of trials,” citing
the statistics that 97% of federal criminal cases are resolved by a plea bargain. Since such an integral part
of the process is clearly a critical stage of the proceeding, there is no basis for failing to provide a remedy
for ineffective representation at that stage. The Court (Frye) emphasizes that the bargained-for result is
intended by the system, and it is not in any way some sort of windfall for defendants: the system is now
designed to deliver an adequate punishment as a negotiated compromise.
The fact that the defendants’ lawyers had acted unreasonably with regard to the plea offers was not
disputed in these cases, so the Court does not explain the fundamental standard of effectiveness in plea
negotiations. As to the prejudice prong of ineffectiveness claims, The Court holds that “a defendant must
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Issue No. 4
show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer
would have been presented to the court, that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.” Whether the defendants in these cases will be able to
meet this standard is unclear, although the Court is especially skeptical of Mr. Fry’s chances, in that he
may not be able to prove that the original offer would not have been withdrawn following his arrest.
Setser v. United States, 132 S.Ct. 1463 (March 28, 2012)
Federal courts have jurisdiction to order a sentence be served consecutive to another sentence which has
not yet been imposed. A sentence is not unreasonable merely because a later sentence renders it
contradictory.
Florence v. Board of Chosen Freeholders of Burlington, 132 S.Ct. 1510 (April 2, 2012)
Petitioner was arrested pursuant to an old warrant for failure to pay restitution that had mistakenly not
been recalled. Court holds that a strip search of petitioner upon his entrance into the jail’s general
population was not a violation of the Fourth Amendment: jail officials must be allowed to take measures
to ensure that weapons or contraband are not brought into the jail, and an individualized determination of
risk is not required. Concurring and dissenting justices (a majority) emphasize that this decision does not
resolve whether it is allowed under the Constitution to arrest someone for a minor infraction and then put
them in a custodial situation which would require such an invasive search, questioning the assumptions
underlying the Court’s authorization of arrests for minor infractions in Atwater v. Lago Vista.
Blueford v. Arkansas, 132 S.Ct. 2044 (May 24, 2012)
Defendant was tried for capital murder, with the jury being given options for lesser-included offenses of
first degree murder, manslaughter, and negligent homicide. Under state law, the jury was required to vote
unanimously with regard to guilt on the greater charges before consideration of any lesser charge. The
jury voted unanimously to acquit on capital murder and first degree murder, but was deadlocked on
manslaughter and, in obedience to the jury instructions, had not considered negligent homicide. In open
court, the jury forewoman announced that the jury had acquitted on the capital and first degree charges,
indicating their numerical split on manslaughter. The judge sent them back to deliberate further, and a
half-hour later the jury was still deadlocked and a mistrial was declared. The state then sought to retry
defendant on all charges.
The Court rejects defendant’s double jeopardy claim, holding that there was no verdict at the time the jury
announced that they had acquitted on the capital and first degree murder charges: the jurors could have
gone back and reconsidered their votes on those charges, so there was no actual acquittal. Further, the
trial court’s declaration of a mistrial on all charges was not improper: there is no requirement that a trial
court use any particular means to avoid a mistrial, such as allowing acquittal verdicts on particular counts,
an option which was not given under the jury’s instructions.
Williams v. Illinois, 132 S.Ct. 2221 (June 18, 2012)
In this plurality 4-1-4 decision, the Court considers whether the Confrontation Clause allows testimony by
an expert witness which relies on and incorporates the result of a DNA test which was not admitted in
evidence, and could not have been admitted, pursuant to Crawford and last term’s decision in Bullcoming,
without testimony of the person who conducted the testing. A plurality of four justices holds that the
expert’s testimony is allowed under the Confrontation Clause because, under standard expert testimony
practice, the facts underlying an expert’s opinion need not be admitted into evidence, and therefore the
Winter 2012
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Issue No. 4
expert’s reference to the DNA test results is not being admitted for the truth of the matter asserted. The
four justices dissenting argue that the expert’s testimony regarding the DNA test results are being
presented for the truth of the matter, since the expert’s opinion cannot be relevant to the defendant unless
the government makes the factual connection to the defendant which the DNA test can only provide,
which thereby uses the results for their truth. The decision therefore rests upon the opinion of Justice
Thomas, who explicitly agrees with the dissent and rejects the plurality’s reasoning, but only concurs with
the result based upon his conclusion (rejected by all eight other justices) that a scientific test result is not
sufficiently formalized to constitute “testimony.”
Dorsey v. United States, 132 S. Ct. 2321 (June 21, 2012)
Based upon a finding that the Fair Sentencing Act contains a clear implication of congressional intent for
retroactive application, the more lenient penalties of the Act, which reduced the crack-to-powder cocaine
disparity, applied to those offenders whose crimes preceded the effective date of the Act, but who were
sentenced after that date.
Miller v. Alabama, 132 S.Ct. 2455 (June 25, 2012)
In a series of decisions dating back to 1988, the Supreme Court has repeatedly ruled that youths under age
18 who commit crimes must not necessarily get as severe a punishment as adults who committed the same
kind of crimes. Among other rulings, the Court has forbidden the death penalty for minors who commit
murders, and it has barred a sentence of life in prison without a chance of release for minors who commit
crimes in which the victim is not killed. In this new ruling, the Court did not impose a flat ban on life
without parole for a minor who commits murder, but it did rule out such a sentence as a mandatory
requirement in all such cases. It said, though, that it does not expect very many youths under age 18 to get
such a sentence that essentially would require them to stay in prison until they die.
United States v. Alvarez, 132 S.Ct. 2537 (June 28, 2012)
The Stolen Valor Act, 18 U.S.C. § 704(b), which makes it a crime to falsely represent that you have been
awarded a military decoration or medal, is facially invalid under the Free Speech Clause of the First
Amendment. Because the Act criminalizes speech based on content alone, it cannot stand: “Permitting
the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made
in a barely audible whisper, would endorse government authority to compile a list of subjects about which
false statements are punishable.” The statute could be rewritten to only apply in circumstances where
some sort of material advantage were sought as a result of the lie. The government’s claimed interest in
supporting the morale of the armed services is not sufficient to meet the heavy burden required to justify a
content-based speech restriction, since there are simple ways to expose such claims as false.
Cert. Grants, 2012 Term
Florida v. Harris, No. 11-817 (cert. granted Mar. 26, 2012)
The Supreme Court granted certiorari to decide whether an alert by a trained drug detection dog certified
to detect illegal drugs is sufficient to establish probable cause for the search of a vehicle. In the
underlying case, the Florida Supreme Court held that evidence that the dog has been trained and certified,
standing alone, is not enough; the government must also present evidence about the dog’s reliability in
detecting the presence of drugs, including records of the dog’s performance in the field. Harris v. State,
71 So. 3d 756 (Fla. 2011). The Tenth Circuit has held the opposite – that a certification from a legitimate
certifying organization is enough to establish the dog’s reliability and that the judicial task is limited “to
assessing the reliability of the credentialing organization, not individual dogs.” United States v. Ludwig,
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Issue No. 4
10 F.3d 1523 (10th Cir. 1993).
Florida v. Jardines, 11-564
Whether sniff of front door by drug dog is a search requiring probable cause.
Moncrieffe v. Holder, No. 11-702
Whether state law conviction that includes, inter alia, distribution of user amount of pot for free is an
aggravated felony, when record does not show conduct would constitute a federal felony.
Bailey v. United States, No. 11-770
Under Michigan v. Summers police executing a search warrant may detain the occupants of the place
searched while they search. Here, police followed someone from the place to be searched and detained
him one mile away, one thing led to another, statements were made and evidence was discovered. At
issue is whether the rule in Summers extends to someone who has already left the premises to be searched.
Evans v. Michigan, No. 11-1327
Whether double jeopardy clause bars re-trial where judge erroneously makes fact an element of offense
and then grants directed verdict b/c government failed to prove that (non)element.
Henderson v. United States, 11-9307
At what point a court assesses whether the law is “plain” for purposes of plain-error review—the time of
the appeal or the time the challenged decision made by trial court. (Tenth Circuit looks at the time of
appeal)
Chaidez v. United States, No. 11-820
Whether the holding in Padilla v. Kentucky has retroactive effect on persons whose convictions were
already final before it was decided.
Smith v. United States, No. 11-8976
Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a
conspiracy charge such that, once a defendant meets his burden of production that he did so withdrawn,
the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a
member of the conspiracy during the relevant period – a fundamental due process question that is the
subject of a well-developed circuit split.
Missouri v. McNeely, No. 11-1425
Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a
drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement
based upon the natural dissipation of alcohol in the bloodstream.
Alleyne v. United States, No. 11-9335
Whether this Court’s decision in Harris v. United States, holding that the Constitution does not require
facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled.
Winter 2012
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Issue No. 4
Descamps v. United States, No. 11-9540
Whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element
of the federal crime of burglary, the federal court may find the existence of that element by examining the
record of the state proceedings under the "modified categorical approach.”
Boyer v. Louisiana, No. 11-9553
Whether a state’s failure to fund counsel for an indigent defendant for five years as a direct result of the
prosecution’s choice to seek the death penalty should be weighed against the state for speedy trial
purposes.
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