Criminal Law

No Double-Counting in Assessing Enhancements in Stolen Firearms Case

Posted on September 18, 2009
US v. Blackbourn, No. 08-5165,2009 WL 2952146 (10th Cir. 9/16/09) (unpublished): when determining the sentence for possession of a stolen firearm, the trial court did not err in enhancing the defendant?s base offense level for the fact the firearm was stolen and for possessing the firearm in connection with another felony...

Capital Petitioner's Claim that Attorney Failed to Investigate and Proffer Mitigating Evidence Rejected

Posted on September 18, 2009
Wackerly v. Workman, ___ F.3d ___, 2009 WL 2940045 (10th Cir. 2009).Upholding the death sentence for a typical, impersonal, rural Oklahoma murder, the 10th holds that in spite of counsel?s failure to investigate and present certain mitigating evidence during death penalty phase of state trial, there was no ?reasonable probability? that the evidence would have effected the outcome by changing the position of at least one juror (Okla...

Regulaton Barring Reopening of Immigration Proceedings for Previously Romoved Persons is Valid

Posted on September 18, 2009
Rosillo-Puga v. Holder, ___ F.3d ___, 2009 WL 2929828 (10th Cir. 2009).Regulation, 8 CFR 1003.23(b)(1), barring reopening of deportation on person previously removed, is valid, and deprives immigration judge (IJ)of jurisdiction to rule on motion to reopen...

Capital Appellate Attorney Positions

Posted on September 18, 2009
The Federal Public Defender for the District of Colorado has posted an announcement for experienced appellate attorneys to handle appeals in the Tenth Circuit. Two positions are available.According to the announcement, the bulk of the caseload would be capital habeas proceedings (primarily section 2254) from the district courts in the Circuit...

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Shady Pharmacist's Conviction Affirmed; Flunky's Conviction Reversed

Posted on September 11, 2009
US v. Lovern, 2009 WL 2871538 (10th Cir. Sept. 9, 2009) (published):Two employees of a shady internet pharmacy, Red Mesa, went to trial and were convicted of charges relating to a conspiracy to dispense drugs in violation of the Controlled Substances Act after the principal owner-operator of the pharmacy pled guilty...

Suppression Properly Denied

Posted on September 11, 2009
US v. Harris, 2009 WL 2873178 (10th Cir. Sept. 9/2009) (unpublished): Warrant to search for drugs was sufficient to support probable cause; out-of-date information was sufficiently updated with details of recent complaints of drug activity at the house and controlled buys, including one within previous 48 hours...

Capital Habeas Representation Meetings

Posted on September 11, 2009
According to an announcement from SueAnn Fitch, CJA Supervising Attorney for the Tenth Circuit, in late October mid-day meetings will be held in Oklahoma City (11:30a-, Petroleum Club, 100 N Broadway , 35th Floor, Tuesday, 10/27/09)and Tulsa (11:30a-, Page Belcher Courthouse, Jury Assembly Lounge, 333 W...

New Tenth Circuit Rules Proposed; Public Comments Solicited

Posted on September 09, 2009
The Tenth Circuit has posted proposed local rules changes for 2010. The comment period for review of those rules runs from August 24, 2009 until October 20, 2009. A memo summarizing the proposed changes is available here. A redlined draft of the proposed changed rules for the both the Federal Rules of Appellate Procedure and local rules is available here.

Minimal Prison Library Does Not Justify Equitable Tolling

Posted on September 04, 2009
Garcia v. Hatch, 2009 WL 2668905 (8/28/09) (unpub'd) - The New Mexico Correction Department's "Legal Access Program" that closed all prison law libraries, offers a few books and form packets and provides staff to help fill out the forms, was not inadequate enough to justify applying equitable tolling to excuse filing the 2254 petition outside of the statute of limitations.

Tenth Applies De Novo Review--Not AEDPA Standard--and Remands Two Capital Habeas Cases

Posted on September 04, 2009
Wilson v. Workman, 2009 WL 2623336 (8/27/09) (en banc) - An important and good en banc decision in the habeas world, although perhaps a trivial decision in your world. By a 7-5 vote [McConnell writing for the majority, Tacha, Briscoe, O'Brien, Tymkovich and Gorsuch dissenting], the 10th holds that de novo review, not the stringent AEDPA standard, applies to state court decisions that do not consider evidence the federal courts consider in light of the correct constitutional standard...

Upward Variance for Embezzling Tribal Official Affirmed

Posted on September 04, 2009
US v. Bullcoming, No. 09-6010, 9/3/09 - Defendant, a tribal official entrusted with handling his district?s share of gaming revenue, pled guilty to one count of embezzlement in exchange for dismissal of other counts and agreed to substantial restitution...

PWID Crack Conviction Does Not Lead to Permanent Bar on Receipt of Fed Benefits

Posted on September 04, 2009
US v. Jacobs, No. 09-5021, 9/2/09 - Agreeing with the parties, the 10th holds that possession with intent to distribute cocaine base in not an ?offense consisting of the distribution of controlled substances? within the meaning of 21 USC § 862(a), which permanently bars a person from receiving federal benefits upon a third conviction for such offense.

Fraud Defendant Improperly Denied Good Faith Defense Instruction

Posted on September 04, 2009
US v. Bowling, No. 08-6184, 9/3/09 - Defendant ?cow farmer? was indicted for bank fraud for selling encumbered cattle under other people?s names and for not using proceeds from cattle sales to pay back his loan. At trial, he submitted a good faith defense instruction, based on evidence that his conduct was really just business as usual between him and the bank going back ten years...

Presence of Drugs Justifies Handcuffing Passenger

Posted on September 02, 2009
United States v. Albert, ___ F.3d ___, 2009 WL 2757038 (10th Cir. 2009).Handcuffing of defendant passenger in vehicle stopped for illegal lane change did not amount to an arrest. The COA holds that in appropriate circumstances handcuffing is allowed for officer safety during a Terry investigation, if a reasonable person under the facts would determine the action appropriate...

Remand for Capital Habeas Petitioner

Posted on September 01, 2009
Fairchild v. Workman, -- F.3d --, 2009 WL 2710320 (10th Cir. 8/31/09) - remand of Okla death penalty case for district court to determine whether to grant stay to permit Mr. Fairchild to return to state court to exhaust his unexhausted ineffective assistance of counsel claim...

Free materials from a premiere expert on the interplay of immigration and criminal law

Posted on August 26, 2009
Norton Tooby, a leading authority on criminal and immigration law, has a number of free materials on his website, which should be checked out. These include his Deportation Grounds Checklist, and Tooby's Guide to Criminal Immigration Law, a 200 or so page summary of his 2000-page guide Criminal Defense of Immigrants, which I use frequently...

Unpublished Decisions; One Results in Remand on Fourth Amendment Civil Rights Claim

Posted on August 25, 2009
Edge v. Payne, August 20, 2009, No. 08-7122: Plaintiff filed suit against a dead judge, another judge, the county clerk, court reporter, court secretary, DA, a bunch of ADAs, the sheriff, undersheriff, various deputy sheriffs, several ATF agents, an unnamed Highway Patrol officer, and 25 "DOES" for good measure, in short, everyone remotely involved in his contentious divorce and subsequent criminal proceedings when he was convicted of possessing a firearm while under a protective order...

Evidence of Prior Assaults Improperly Admitted In Assault Case Where Self-Defense Claimed

Posted on August 25, 2009
US v. Commanche, -- F.3d --, 2009 WL 2581737 (10th Cir. 8/24/09) - defense victory! In assault resulting in serious bodily injury case, the district court improperly admitted under Fed.R.Evid. 404(b) bad acts evidence against the defendant. Self defense was the defense...

State Petitioner Gets Hearing on Whether He Asked His Lawyer to Appeal

Posted on August 19, 2009
Clayton v. Ward, 2009 WL 2462362 (8/13/09) (unpub'd) - Remand for an evidentiary hearing on whether the petitioner asked his lawyer to appeal. The d. ct. was wrong to reject the claim on the ground that the petitioner did not have any meritorious appeal issues...

OK for Court to Reject Plea Agreement

Posted on August 19, 2009
U.S. v. Lechner, 2009 WL 2480772 (8/14/09) (unpub'd) - The d. ct. did not abuse its discretion when it rejected a plea agreement due to the defendant's failure to admit her intent to assault the victim. The court properly understood the defendant to be refusing to admit all the essential elements...

Useful Case for Excluding Opposing Expert

Posted on August 19, 2009
Milne v. USA Cycling, Inc., 2009 WL 2430642 (8/10/09) (Published) - If you want to keep an expert out, this case has some somewhat useful language requiring the expert's reasoning and methodology to be reliable.

Life Sentence for Drug Defendant Affirmed; Speedy Trial Act, Other Arguments Rejected

Posted on August 19, 2009
U.S. v. Williams, 2009 WL 2462351 (8/13/09) (Published) - The d. ct. did not abuse its discretion when, upon remand from the 10th due to a Speedy Trial Act violation, it dismissed the indictment without prejudice, rather than with prejudice. The seriousness of the offense---possession of cocaine with the intent to distribute that carried a life sentence in light of the defendant's priors---and the lack of: prejudice to the defendant [the 5 years to challenge his priors had already passed before the delay]; evidence of government intentional delay or pattern of neglect; and the defendant's assertions of his speedy trial rights until after the time limit had passed, justified a without-prejudice dismissal...

Hearing Ordered for Capital Habeas Petitioner Troy Davis on Innocence Claim

Posted on August 19, 2009
In Re Davis, 2009 WL 2486475 (8/17/09) - An order that was unusual for two reasons: (1) it was issued in the summer; and (2) it dealt with an original habeas filing, which for almost 50 years the tens of thousands of such petitions have always resulted in summary denials...

United States v. Burgess, ___ F.3d

Posted on August 12, 2009
United States v. Burgess, ___ F.3d ___, 2009 WL 2436674 (10th Cir. 2009).Known Hell?s Angels? motor home stopped for expired plate on trailer. A drug dog alerts, cops smell pot, defendant (D) says can?t search--get a warrant. Cop enters anyway and finds pot and cocaine, sees a laptop, D says pot is his...

Civil Rights Case Dismissed Against Officer Who Killed Motorist While Chasing Gas Thief

Posted on August 11, 2009
Green v. Post, 2009 WL 2422762 (8/7/09) (Published) - The 10th explores the parameters of substantive due process, which requires shocking of the conscience to allow relief, and accidents caused by pursuing officers. In this case, the officer, while trying to catch up to someone who had stolen $ 30 worth of gas, sped 20 mph above the speed limit through an intersection, without having engaged his emergency equipment, when the light was yellow, and ran into someone turning left at that intersection, killing the driver...

"Hunch" That Civil Rights Plaintiff Had More Info Did Not Provide Probable Cause to Arrest

Posted on August 11, 2009
Manzanares v. Higdon, -- F.3d --, #07-2156 (10th Cir. 8/10/09) - Albuquerque police officers went to Manzanares' home to get info re: an acquaintance of his that they suspected had committed a reported rape. Manzanares invited them in, gave them some info, then asked them to go...

Treaty Hunting Rights Not A Defense to Felon-in-Possession Charge

Posted on August 04, 2009
US v. Fox, No. 08-2190, 7/29/09 - Defendant, a Navajo with prior felony convictions, was found in possession of a shotgun and rifle on the reservation. He claimed that the treaty establishing the reservation conferred on him the right to hunt there with firearms, and that 18 USC § 922(g)(1), which generally prohibits firearm possession by convicted felons, did not apply to him because there was no clear evidence that Congress had actually considered the effect the statute would have on his treaty right...

6-Month-Old Info in Warrant "Refreshed" by Trash Contents

Posted on August 04, 2009
US v. Timley, No. 08-3160, 7/30/09 - Denial of motion to suppress evidence seized during execution of a search warrant affirmed. Defendant sold small amounts of pot to a snitch. Six months later, cop does a trash pull from the can in the alley behind defendant's house and finds pot residue and paraphernalia...

Certain Aliens Who Enter Without Inspection Are Ineligible for Status Adjustment

Posted on August 04, 2009
Herrera-Castillo v. Holder, 2009 WL 2217519 (7/27/09) (Published) - An alien who has entered without inspection and remained in the U.S. for more than a year is ineligible for adjustment of status, absent a waiver, such as a hardship waiver. The 10th interprets the relevant statutes which appear to make such an alien both eligible and ineligible to mean that those who are specifically referenced as inadmissible are ineligible but others might still be eligible...

Malicious Prosecution Suit Reinstated

Posted on August 04, 2009
Miller v. Spiers, 2009 WL 2219256 (7/27/09) (unpub'd) - In a § 1983 case, the 10th holds the allegations were sufficient so far to support a malicious prosecution claim. The plaintiff can proceed on such a claim on a charge-by-charge basis, even though he pleaded guilty to attempted evidence tampering charges in the relevant indictment...

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