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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

Winter Edition of Liberty Legend Available

Posted on February 19, 2010
The Winter 2010 edition of the Liberty Legend newsletter, published by the National Association of Federal Defenders, is now available. In this issue . . .THE PRESIDENT?S MESSAGE AMICUS COMMITTEE REPORT By Fran Pratt, Co-Chair of Amicus Committee, Assistant Federal Defender, Eastern District of Virginia, Alexandria KudosKorner PRESENTING A DEFENSE AT TRIAL: THE USE OF REVERSE F...

Tenth Affirms Dismissal with Prejudice Based on Speedy Trial Right Violation

Posted on February 19, 2010
United States v. Seltzer, ? F.3d ?, 2010 WL 537763 (10th Cir. Feb. 17, 2010), is a welcome reminder that the defendant still has a right to some diligence on the part of the government seeking to incarcerate him. In this decision, the Tenth Circuit affirmed the district court?s dismissal with prejudice of the Superseding Indictment against Andy Seltzer because his Sixth Amendment right to a speedy trial was violated...

Unpublished Decisions

Posted on February 18, 2010
U.S. v. Liner, 2010 WL 517640 (2/12/10) (unpub'd) - Troubling comment: "We find the defendant's arguments that his sentence was manifestly substantively unreasonable to be so wholly without merit that we are compelled to remind defense counsel of his ethical obligation not to present frivolous arguments to this court...

Double Jeopardy Claim Rejected for State Petitioner

Posted on February 18, 2010
Lambert v. Workman, 2010 WL 446956 (2/10/10) (Published) - It was not unreasonable for the state court of appeals to find no double jeopardy violation when the petitioner was convicted of first-degree murder after the appeals court had reversed the initial murder conviction that might have been based on a felony murder theory not alleged in the indictment, but affirmed a predicate robbery conviction...

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Ponzi-scheme Defendants Lose on Most Issues

Posted on February 18, 2010
U.S. v. Lewis, 2010 WL 481282 (2/12/10) (Published) - The offense was a classic Ponzi scheme. The 10th found insufficient evidence of a few counts of wire and security fraud because the government cited no evidence that the person pitching the fake investments knew she was lying and no evidence the defendant caused her to lie...

Community Service Condition of Probation Affirmed

Posted on February 18, 2010
U.S. v. Middagh, 2010 WL 487174 (2/12/10) (Published) - The 10th affirms a probation condition of 240 hours of community service for accepting social security benefits that were a deceased person's. On the good news side, the 10th considered preserved the challenge to the court's failure to explain its sentence because when the defense attorney started to explain his objection to the sentence, the court cut him off midsentence and told him: "the matter is done," thus affording the defense no opportunity to register a procedural complaint...

Defendant Denied Relief Under Innocence Protection Act

Posted on February 12, 2010
US v. Jordan, No. 08-1431, 2/11/10 - Defendant was convicted of assaulting and murdering a fellow inmate with a shank one afternoon in the recreation yard at Florence. Two eyewitnesses identified him as the stabber, and several more saw him chase the victim after the stabbing and then throw the shank on a roof...

Research and Writing Position at FPD Office for Colo. and Wyo.

Posted on February 11, 2010
According to an announcement released by the Federal Public Defender Office, the Federal Public Defender, District of Colorado, seeks a Research and Writing Specialist. The Office of the Federal Defender operates under authority of the Criminal Justice Act, U...

District Court Improperly Limited Government's Presentation of Evidence Supporting Allegations in Indictment

Posted on February 10, 2010
U.S. v. Schneider, No.s. 09-3028 & 09-3045 (2/8/10) (Published) - The 10th reverses a district court's prohibiting the government from presenting evidence supporting all of its allegations in one count of the indictment. The count charged the defendants with dispensing controlled substances resulting in the death of 18 people...

Lawsuit by DA, Cops Against Author Grisham, Publisher Dismissed

Posted on February 10, 2010
Peterson v. Grisham, 2010 WL 337686 (2/1/10) (Published) - The 10th affirms the dismissal of a law suit by a district attorney, a police officer and a criminologist against publishers and authors, including the famous John Grisham, who detailed the DNA exoneration of two defendants convicted of rape and murder in Oklahoma...

Unclear Temporary Tag Supported Traffic Stop

Posted on February 10, 2010
U.S. v. Cano, No. 08-3202 (2/8/10) (unpub'd) - The officer had reasonable suspicion to stop a motorist, even though the van had a perfectly legal dealer license plate, because the van also had a temporary tag on the back windshield that was not clearly legible.

Tenth Rejects Petitioner's Claim He Was Improperly Treated as an Adult

Posted on February 10, 2010
Triplet v. Franklin, 2010 WL 409333 (2/5/10) (unpub'd) - In violation of Oklahoma law, the petitioner was treated as an adult, instead of a youthful offender, but he is not entitled to relief on the ground that appellate counsel failed to raise the issue...

Civil Rights Complaint Sent Back for More Proceedings

Posted on February 10, 2010
Casanova v. Ulibarri, ___ F.3d ___ , 2010 WL 437335 (10th Cir. 2010)Reversal of dismissal of �1983 complaint. District court wrongly considered allegations in the warden?s answer as established facts upon which to dismiss the complaint, determining, for example, that the warden took over his post after the largely undated medical conditions actions complained of by petitioner...

Search Following 911 Call Upheld

Posted on February 10, 2010
United States v. Porter, ___ F.3d ___ , 2010 WL 437337 (10th Cir. 2010) Denial of motion to suppress gun found in home upheld. Although there was no probable cause to arrest defendant at the time police entered his home, under Michigan v. Fisher, ___S...

Interplay of State & Federal Sentences Addressed

Posted on February 10, 2010
United States v. Miller, ___ F.3d ___ , 2010 WL 437328 (10th Cir. 2010)A case addressing some aspects of concurrent/consecutive and state/federal sentences. Pro se ?nunc pro tunc? petition to order BOP to designate that petitioner?s upcoming federal sentence be served at the state institution where he is currently serving his state sentence is a habeas petition challenging the execution of his sentence under 18 USC Sec...

Statement at Allocution Results in Perjury Enhancement

Posted on February 10, 2010
United States v. Parker, ___ F.3d ___ , 2010 WL 437329(10th Cir. 2010)Whoops! Should?ve kept his mouth closed. District court stated it was not until defendant?s inconsistent testimony at allocution did it decide that he had perjured himself during his suppression hearing testimony (the court stated that its ruling denying suppression was merely a matter of finding some witnesses more credible, but not a finding necessarily that defendant perjured himself)...

US v. Prince, -- F.3d --, 2010

Posted on February 04, 2010
US v. Prince, -- F.3d --, 2010 WL 337910 (10th Cir. 2/1/10) - reversal of district court suppression order. Although there may have been a mistake of law by ATF re: whether AK-47 "flats" -- i.e., pieces of flat metal containing holes and laser perforations-- received by Mr...

PublishedUS v. Headman, No. 09-1033,

Posted on February 04, 2010
PublishedUS v. Headman, No. 09-1033, 2/4/10 - Defendant and others were drinking together. Two of them started fighting and defendant and two women joined in. They and the winner threw the loser into the trunk and drove to the Southern Ute Indian Reservation...

Upward Variance for "Exceptional" Reckless Endangerment Approved

Posted on January 27, 2010
United States v. Osborne, ___ F.3d ___ , 2010 WL 277134 (10th Cir. 2010) (per curiam) The Tenth upholds an upward departure of two levels for reckless endangerment during flight in excess of the reckless endangerment already provided for by the adjustment under the guidelines (so 2 levels up under � 3C1...

Court Erred in Not Giving Requested Instruction in Civil Rights Case

Posted on January 12, 2010
Arnold v. Curtis, 2009 WL 5159766 (12/31/09) (unpub'd) - The plaintiff presented sufficient evidence to warrant an instruction that the officer seized her in violation of the 4th Amendment if he intentionally grabbed her, and threw her down the stairs in a movie theater...

No Double Jeopardy Bar to Retrial After Reversal Due to Constructive Amendment of Indictment

Posted on January 12, 2010
US v. Farr, -- F.3d --, 2010 WL 60904 (10th Cir. 1/11/10) - retrial did not violate double jeopardy after initial conviction was reversed due to government's constructive amendment of the indictment. Reversal for constructive amendment does not engender double jeopardy concerns; factual findings had not been made that were tantamount to a judgment of acquittal and there had been no conclusion that the government had failed to prove an element of the offense.

Immigration Law Primer From the Federal Judicial Center

Posted on January 07, 2010
This blog focuses on Tenth Circuit decisions and issues pertinent to lawyers specializing in federal criminal defense. However, with the dramatic increase in immigration crimes and the harsh immigration results that even an apparently minor conviction in state court can have on non-citizens, every criminal defense lawyer should also have a basic knowledge of immigration law...

Prior Colo. Conviction for Attempted Sexual Abuse of A Minor Categorically a Crime of Violence

Posted on January 06, 2010
United States v. De La Cruz-Garcia, ___ F.3d ___ , 2010 WL 11011 (10th Cir 2010):Colorado attempted sexual abuse of a minor is categorically a crime of violence under U.S.S.G. section 2L1.2. The Tenth Circuit rejects as strained the reentry defendant?s argument that there is a manner of violating the statute that would not be a crime of violence: when one touches him/herself directly or through clothing in the presence of a child...

Several 10th Cir. decisions, all

Posted on January 02, 2010
Several 10th Cir. decisions, all but one published and a couple that are quite important:U.S. v. Rivera-Oros, 2009 WL 5102789 (12/29/09) (Published) - The 10th holds that a burglary of a dwelling under the USSG � 2L1.2 definition of crime of violence [and impliedly under the career offender guidelines] includes movable dwellings...

Instructing Jury on Qualified Immunity Was Harmless Error

Posted on December 23, 2009
Gonzales v. Duran, ___ F.3d ___ , 2009 WL 4912301 (10th Cir 2009) In � 1983 trial against police officers for interrogating minor and in holding minor and her mother in a police car under ruse, it was harmless error for the trial court to submit to the jury, over plaintiffs? objections, the question of qualified immunity...

Variance from 57 months to 5 years probation affirmed

Posted on December 23, 2009
United States v. Sayad, ___ F.3d ___ , 2009 WL 4912298 (10th Cir 2009) Affirmance on substantive and procedural reasonableness grounds of sentence of 5 years probation, a variance from the low end of the advisory guidelines, if calculated in a manner most favorable to defendant, of 57 months...

Illegal Seizure Argument Not Preserved; Denial of Suppression Motion Affirmed

Posted on December 22, 2009
U.S. v. Lambert, 2009 WL 4810291 (12/15/09) (unpub'd) - The defendant could not raise on appeal from a conditional plea the contention that the officers illegally seized her, invalidating her consent to search. Her argument below that she did not voluntarily consent and that the search exceeded her consent did not preserve the illegal seizure argument...

Use of Firearm Enhancement Upheld

Posted on December 22, 2009
U.S. v. Philley, 2009 WL 485267 (12/17/09) (unpub'd) - It was okay to impose an enhancement for using a firearm in connection with a felony under USSG � 2K2.1(b)(6), even though the defendant was convicted only of a state misdemeanor for the conduct he engaged in with the firearm...

Pretrial Diversion Not a Conviction

Posted on December 22, 2009
Arroyo v. Starks, 2009 WL 4827370 (12/16/09) (Published) - There is no habeas remedy to challenge a case resulting in pretrial diversion. Such a case at most anticipates a conviction. It does not involve a conviction. Consequently, the plaintiff can challenge the false arrests that led to the pretrial diversion through a � 1983 suit.

Insufficient Allegation of Intent to Harm in High-Speed Chase to Support Civil Rights Action

Posted on December 22, 2009
Ellis v. Ogden City, 2009 WL 4857085 (12/17/09) (Published) - The plaintiffs did not allege enough to warrant relief in a � 1983 action for the officer engaging in a high speed chase and killing a bystander. The officer going 80 mph in a 55 mph zone through residential streets after he was ordered to stop chasing did not establish the intent to harm necessary for relief when there was no time to deliberate.

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