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Criminal Law

Tenth Circuit Blog

Commentary and summaries of cases before the Denver-based 10th U.S. Circuit Court of Appeals.
By Shari Allison

Post Frequency: 2.7/day

Last Entry: August 28, 2020 at 17:58:00

Skipping Formal Revocation Hearing OK'd

Posted on August 04, 2009
U.S. v. Shidler, 2009 WL 2231669 (7/28/09) (unpub'd) - It was okay to skip a formal revocation hearing, even though the defendant himself never admitted the revocation petition's allegations, because the totality of the circumstances indicated the defendant admitted guilt...

Parole Agreement Authorized Search of Parolee's Car Even After Arrest of Parolee for Violation; Statement Voluntary Despite Shackles

Posted on August 04, 2009
U.S. v. Cordova, 2009 WL 2351618 (7/31/09) (unpub'd) - The defendant's parole agreement remained in effect after he was arrested for a parole violation, thus justifying a parole search of his car based upon reasonable suspicion. Reasonable suspicion was established by double hearsay that he was using drugs plus a positive test for cocaine use...

District Court Did Not Abuse Discretion in Limiting Cross Examination of Officer

Posted on August 04, 2009
U.S. v. Beltran-Garcia, 2009 WL 2231667 (7/28/09) (unpub'd) - Cross-examination of an officer, whose credibility was important, concerning an unrelated prior misrepresentation of the extent of consent given to search a house and the omission in his report on the incident of material facts was admissible under F...

Former Qwest CEO Receives New Sentencing for Insider Trading Conviction

Posted on August 04, 2009
U.S. v. Nacchio, 2009 WL 2343716 (7/31/09) (Published) - Once again the 10th spends more time and energy on the former Qwest CEO than on all of our clients combined. 59 pages this time. He prevails on guideline and forfeiture questions and in the process creates law that could be relevant to our lowly clients...

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PC to Arrest Not Supported by "Inherently Innocuous Behavior"

Posted on August 04, 2009
Sherhouse v. Ratchner, 2009 WL 2343711 (7/31/09) (Published) - In a civil rights case, the 10th holds one of the plaintiffs was entitled to judgment as a matter of law. The Albuquerque officers did not have probable cause to arrest a Hispanic teenage girl who was seen near the neighborhood of a robbery where the culprit was supposed to be a black female...

Conviction of Both Drug Conspiracy and CCE Counts Violate Double Jeopardy; Other Arguments Rejected

Posted on July 31, 2009
US v. Hutchinson et al, -- F.3d --, 2009 WL 2217521 (10th Cir. 7/27/09) - appeal of crack convictions on retrial, after first jury hung and a mistrial was declared, of several defendants who ran a curbside crack operation out of a Denver motel. Until a drug-related murder messed things up, defendants exhibited a powerful, if "peculiar," community spirit; they ran a Mother's Day "crack scramble" involving crack tossed from a balcony onto a parking lot for moms to grab, as well as an Easter egg hunt with crack rocks substituted for eggs...

Pre-Gant Search Upheld Under Good Faith Exception

Posted on July 31, 2009
United States v. McCane, ___ F.3d ___, 2009 WL 2231658 (10th Cir. 2009).Following Gant, the Court determined that the search was not valid as incident to the defendant?s lawful arrest (Defendant arrested for a traffic violation and cuffed and placed in patrol car, the car was then searched and a gun found) but upheld the search under the good faith exception to the exclusionary rule per Herring...

No Qualified Immunity for Defendants Who Subjected Plaintiff to Strip Search

Posted on July 22, 2009
Myers v. James, 2009 WL 2050726 (7/16/09) (unpub'd) - The 10th affirms refusal to dismiss a � 1983 action on qualified immunity grounds. It was clearly established that requiring a person arrested for public intoxication to take off her clothes, take a shower and be visually inspected [not cavity searched] by officer violated the 4th Amendment...

Alien Not Denied Due Process Despite Gaps in Appellate Record

Posted on July 22, 2009
Witjaksono v. Holder, 2009 WL 2096220 (7/17/09) (Published) - The alien was not denied his right to a reasonably complete appellate record, even though in the 57 pages of transcript of the removal hearing there were 189 notations of indiscernible. The indiscernibles were almost all during the alien's testimony...

No Abuse of Discretion in Admitting Evidence of Defendant's Abuse of Children in Parental Kidnapping Case

Posted on July 22, 2009
U.S. v. Rizvanovic, 2009 WL 2105231 (7/17/09) (Published) - Where the defendant was charged with international parental kidnaping, it was not an abuse of discretion to allow the government to cross and present evidence regarding the defendant's alleged physical abuse of the children...

Church Was an Arson "Victim" under 18 U.S.C. � 1153(a

Posted on July 22, 2009
US v. Jane Doe, a female juvenile, and John Doe, a male juvenile, Nos. 08-1137 and 08-1184 (10th Cir. 7/20/09) - arson convictions affirmed. The arson victim, the Ute Mountain Presbyterian Church, constituted a "person" under 18 U.S.C. � 1153(a). The statutory context does not require a "person" to be a living individual...

Fingerprint Analysis Testimony Admissible

Posted on July 22, 2009
US v. Baines, -- F.3d --, 2009 WL 2139117 (10th Cir. 7/20/09) - The district court did not abuse its discretion in admitting expert fingerprint analysis testimony. Defense argued gov't did not establish reliability of method for matching latent print to defendant's known print...

Innocence Project Report Focuses on Eyewitness Identification

Posted on July 22, 2009
A new report from the Innocence Project of the Benjamin Cardozo School of Law, Yeshiva University, focuses on eyewitness identifications and lineups. Called "Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification," describes common problems with lineups and suggests changes to prevent erroneous identifications that result in the convictions of innocent persons...

Not Plain Error to Determine CA Kidnapping, Robbery Convictions were Crimes of Violence

Posted on July 22, 2009
US v. Juarez-Galvan, -- F.3d --, 2009 WL 2137396 (10th Cir. 7/20/09) - In a reentry case, it was not plain error to impose the 16-level crime of violence enhancement for California convictions for kidnapping and robbery. Gov't conceded neither offense had an element of use of physical force...

Unpublished Decisions

Posted on July 17, 2009
U.S. v. Jimenez, 2009 WL 1927370 (7/7/09) (unpub'd) - The contention that officers were not lawfully in a particular place from which they saw incriminating stuff in plain view could not be raised by the defendant who did not have a legitimate expectation of privacy in the place the officers invaded...

Circuit Snippets

Posted on July 17, 2009
Defendants have a right to cross-examine analysts who conduct and write reports on forensic laboratory tests, the Supreme Court held. The sworn reports are "clearly testimonial." Melendez-Diaz v. Mass., No. 07-591 (U.S. 6/25/09)A school administrator violated a 13-year-old girl's fourth amendment rights when he ordered that she be strip searched on suspicion that she possessed ibuprofen, but the asst...

No Denial of Defendant's Right to Represent Himself in Tax Case

Posted on July 14, 2009
US v. Miles, -- F.3d --, 2009 WL 2005250 (10th Cir. 7/13/09) - Mr. Miles was not denied his right to self-representation between the time the jury convicted him on nine counts of willfully filing false income-tax returns and his sentencing. He had represented himself at trial, then asked for his standby counsel to speak for him re: release after he was convicted...

COA Approves Sentencing Under Manslaughter GL for Felon in Possession

Posted on July 14, 2009
US v. Cherry, -- F.3d --, 2009 WL 2005235 (10th Cir. 7/13/09) - in sentencing Mr. Cherry for felon in possession of a firearm, the district court properly analogized his conduct in connection with his possession of a firearm to voluntary manslaughter under USSG � 2K2...

Court Rejects Juror, Misconduct and IAC Claims to Affirm Death Penalty

Posted on July 10, 2009
Matthews v. Workman, ___F.3d ___, 2009 WL 1927051 (10th Cir. 2009).Death penalty upheld in habeas corpus petition. (1) COA applies Brecht ?substantial and injurious effect? test to juror?s improper communication with excused alternate after guilt phase, previous to penalty phase, where alternate said newspaper account of crime supported the guilty verdict, and juror told other jurors during penalty phase that she had spoken with alternate, though they did not recall any mention of newspaper account...

Mid-trial Disclosure of Brady Material May Violate Due Process

Posted on July 10, 2009
United States v. Burke, ___ F.3d ___, 2009 WL 1926850 (10th Cir. 2009)Clarifying older case law that might have implied differently, the Court holds that belated, mid-trial disclosure of impeachment or exculpatory information per Brady violates due process, if it is shown that an earlier disclosure would have created a reasonable doubt of guilt...

Petitioner Not Responsible for Counsel's Delays; Petition Should Not Have Been Dismissed

Posted on July 10, 2009
Davis v. Miller, ___F.3d ___, 2009 WL 1926915 (10th Cir. 2009)District court abused its discretion in dismissing with prejudice the Sec. 2254 habeas corpus petition under Rule 41 for failure to comply with court orders: Petitioner?s attorney asked for numerous extensions of time to amend the petition and missed them all...

Petitioner Receives Relief Because Trial Counsel Recommended Rejecting Plea Offer

Posted on July 10, 2009
Williams v. Jones, No. 06-7103, 7/8/09 - Defendant was charged in Oklahoma state court with first degree murder and was offered plea to second degree and a ten year sentence. Believing defendant to be innocent, his lawyer told him to reject the offer or get a new lawyer...

"Reasonableness" Standard Adopted for FOIA Requests

Posted on July 06, 2009
Trentadue v. FBI, 2009 WL 1886696 (10th Cir. July 2, 2009) (published)In this case, in which Mr. Trentadue sought records from the FBI under the Freedom of Information Act, the Tenth Circuit adopts the standard of other circuits that FOIA requires only that an agency make a "reasonable" search of its records to comply with a FOIA demand.

Tenth Affirms Denial of Hearing on Issue of Juror Bias

Posted on July 02, 2009
United States v. Brooks, ___F.3d ___, 2009 WL 1862529 (10th Cir. 2009)Tenth Circuit upholds denial of evidentiary hearing on issue of juror bias, and finds no plain error at Defendant?s initial appearance for alleged failure to advise him of all his rights...

Defendant Wins on Brady Issues; Gov't Failed to Disclose Information About Confidential Informant

Posted on July 02, 2009
United States v. Torres, ___F.3d ___, 2009 WL 1862528 (10th Cir. 2009)Addressing Brady and evidentiary issues, the COA hands a victory to the Defendant. The opinion bears careful reading. (Sorry for the length?this is a rare fact-bound defense victory)...

Officer's Confusion About What Law Was Violated Did Not Render Stop Unconstitutional

Posted on June 30, 2009
US v. Eckhart, -- F.3d --, 2009 WL 1841695 (10th Cir. 6/29/09) - affirmance of denial of motion to suppress. Stop of California vehicle in Utah was justified because it was in violation of Utah law requiring license plate to be clearly visible. Not a problem that the officer was confused about what law was violated since there was an actual violation...

U.S. v. Robertson, No. 08-3126

Posted on June 29, 2009
U.S. v. Robertson, No. 08-3126 (6/19/09) (Published) - Affirmance of an upward departure with a couple of preservation lessons. Departures are alive and well in the 10th Circuit. The 10th applies the same standard of review to departures it applied pre-Booker...

United States v. Leifson, ___F.3d

Posted on June 29, 2009
United States v. Leifson, ___F.3d ___, 2009 WL 1758766 (10th Cir. 2009)The COA holds that the accessory-after-the-fact perjury cross reference guideline, U.S.S.G. � 2X3.1, applied to Defendant?s conviction of perjury in front of the grand jury. The cross reference perjury guideline starts at 6 levels lower than the crime involved?in this case, second degree murder, so higher than plain perjury...

PublishedUS v. Cruz-Rodriguez,

Posted on June 29, 2009
PublishedUS v. Cruz-Rodriguez, No. 07-4083, 6/24/09 - Defendant charged with illegal reentry waived his claim that the evidence and instruction impermissibly expanded the scope of the indictment, so his conviction was affirmed. The indictment specified the date of his last deportation...

PublishedUS v. Smith, No. 08-8019,

Posted on June 29, 2009
PublishedUS v. Smith, No. 08-8019, 6/18/09 - Convictions for tax evasion, submitting fictitious obligations and lying in bankruptcy petition affirmed. 1) Excluding the time between the filing of pretrial motions and a brief hearing on the motions during a status conference was proper, so no speedy trial violation; and 2) no abuse of discretion in asking witnesses questions submitted by jurors because they were merely clarifying and benign questions...

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