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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

Donating Criminal Case Records Not Tax Deduction

Posted on April 07, 2009
Jones v. Commissioner of Internal Revenue, 2009 WL 794481 (3/27/09) )(Published) - The attorney for Timothy McVeigh could not claim as a tax deduction his donation of records the government gave to him as part of the discovery in Mr. McVeigh's case. The papers were "letters, memos, or similar property held by the taxpayer for whom such property was prepared or produced," and therefore could only be deducted if the taxpayer had paid something for them, which he had not.

Obstructing Federal Grand Jury Convictions Affirmed

Posted on April 07, 2009
US v. Erickson, -- F.3d --, 2009 WL 903387 (10th Cir. 4/6/09) - there was sufficient evidence to convict 2 co-Defendants of obstructing and impeding a federal grand jury under 18 USC § 1503. The requirement of proof of acting corruptly with the specific intent to obstruct or impede the proceeding in its due administration of justice was met by evidence that the defendants created false docs to deliver to the grand jury in response to its subpoena...

Voluntary ECF Filing Begins; Mandatory Electronic Filing in Two Months

Posted on April 02, 2009
The Tenth Circuit began voluntary use of the Electronic Case Filing (ECF) system this week. Use of the ECF system will become mandatory on June 1. Practitioners have to sign up for the appellate ECF system even if they have signed up for the district court system...

Insufficient Evidence of Money Laundering, But Wire Fraud Convictions Affirmed

Posted on March 31, 2009
US v. Gayle Caldwell, -- F.3d --, 2009 WL 806579 (10th Cir. 3/30/09) - appeal of wire fraud and money laundering convictions after trial with husband and five other co-Ds. While there was ample evidence of intent to defraud to support wire fraud conviction, the money laundering conviction is reversed due to insufficient evidence that the transaction in question was designed to conceal...

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Another GL Sentence Affirmed

Posted on March 27, 2009
US v. Gallegos-Castillo, No, 08-2090, 3/26/09 - Bottom of the guideline range sentence in reentry case affirmed. No plain procedural error in using prior violent felony conviction in both offense level and criminal history calculations, and court was without jurisdiction to review decision not to depart downward based on overrrepresented criminal history...

Multitudinous Brady/Giglio/Napue Violations Basis for Habeas Relief for Two Capital Defendants

Posted on March 27, 2009
Douglas v. Workman, No. 01-6094 and Powell v. Workman, No. 06-6093, 3/26/09 - Great (conditional) habeas win in these companion Oklahoma death penalty cases. Smith and a young lady were walking along late one night after a party, at which Smith had drunk a lot and smoked pot...

Tenth Emphasizes Counsel's Duties to the Court

Posted on March 27, 2009
US v. Mendez-Zavala, No. 08-2178, 3/26/09 (unpublished) - Defendant pled guilty to conspiracy to possess heroin with intent to distribute. He got a 2-level increase at sentencing for possessing a gun during a purchase of heroin from an undercover cop, based on the testimony at sentencing of the cop...

Tenth Reverses New Trial Grant Despite Jurors' Racist Comments

Posted on March 25, 2009
US v. Benally, -- F.3d --, 2009 WL 73893 (10th Cir. 3/23/09) - Rehearing en banc denied of panel decision reversing Utah district court grant of Mr. Benally's new trial motion. There were 4 votes for rehearing - Briscoe, Lucero, Henry, and Murphy. Briscoe writes a dissent joined by Lucero and there is a separate dissent by Murphy and Lucero...

Okla. Battery on Peace Officer Categorically an ACCA Predicate

Posted on March 20, 2009
US v. Williams, 2009 WL 692323, 3/18/09 - Prior conviction for battery on a peace officer, a felony under Oklahoma law, counted as a crime of violence under ACCA. Defendant tried to argue that this was really a misdemeanor that was aggravated to felony status only because of the victim?s status...

Fishing Expedition

Posted on March 20, 2009
US v. Marquez-Diaz, 2009 WL 693337, 3/18/09 - Denial of suppression motion affirmed. Cop followed pickup truck late one evening just south of Carrizozo NM and pulls it over because the license plate light is misaligned, creating a glare that prevented cop from reading the plate...

ACCA Sentence Reversed Based on Chambers

Posted on March 20, 2009
US v. Turner, 2009 WL 693343, 3/18/09 - ACCA sentence vacated and remanded for resentencing in light of Chambers, where one of defendant?s convictions was for escape- failure to report.

Embezzlement Convictions Upheld

Posted on March 20, 2009
US v. Island, No. 08-6111, 3/19/09 (unpublished)- Sufficient evidence supported convictions for misdemeanor embezzlements and felony conspiracy to embezzle. Defendant ran day-today operations of tribal gaming account, and wrote checks from the account at the direction of her boss, who was chairman of the 8-member business committee...

Feeding at the Public Trough

Posted on March 20, 2009
US v. Baldridge, 2009 WL 692107, No. 07-5121 (10th Cir. 3/18/09) (published): The Tenth affirms the convictions of a local (former) politician for conspiracy, fraud and misapplication of funds by a local government official, mail fraud, money laundering and corrupt persuasion of a person to obstruct a federal investigation...

Electronic Case Filing

Posted on March 10, 2009
According to an announcement at the Tenth Circuit's website, the Court will begin electronic case filing (ECF) on a voluntary basis on March 31, 2009. The Court will have ECF open for testing prior to that date, but pleadings will not be accepted via ECF until that date...

Circuit Snippets

Posted on March 06, 2009
The Supreme Court broadly interpreted the definition of "misdemeanor offense of domestic violence," as used in 18 USC 922(g)(9) (prohibiting firearms possession by persons with such convictions) as requiring the government to prove beyond a reasonable doubt that the victim of the prior offense was in a domestic relationship with the offender, but the prior statute of conviction did not need to include the domestic relationship as an element...

"Honest Services" Aspect of Federal Mail Fraud Statute Needs Clarity, But Won't Get It

Posted on March 04, 2009

Fetish Evidence Not Fundamentally Unfair

Posted on March 04, 2009

"Rumor" Helps Support Pat-Down Search

Posted on March 04, 2009

Failure to Return "Escape" Not A Career Offender Predicate

Posted on March 04, 2009

Bad Result for Crack Defendants Who Previously Received Booker Variances

Posted on March 04, 2009

Crack, Gun Convictions Affirmed; Evidentiary, Alleged Prosecutorial Misconduct Claims Rejected

Posted on March 04, 2009

Quoth the Raven: Bounty Hunters Evermore

Posted on March 04, 2009

Listserve for Tenth Circuit Appellate Attorneys Representing Indigent Defendants

Posted on March 02, 2009

Nacchio: A Must-Read Case Concerning Expert Testimony

Posted on February 27, 2009

How Many Ways to Vary from the Guidelines? At Least 171!

Posted on February 25, 2009
Periodically, I like to include a reminder of a wonderful sentencing resource that I keep on my desk for sentencing memos: Michael Levine's "171 Easy Mitigating Factors". It brings together numerous cases to provide bases for mitigation arguments. The resource (now more than 140 pages long) is updated regularly during the year...

OSHA Does Not Preempt OK Law Allowing Employees to Keep Guns in Cars at Work

Posted on February 24, 2009
Ramsey Winch, Inc. v. Henry, 2009 WL 388050 (2/18/09) (Published) - The 10th holds the federal Occupational Health and Safety Act, which imposes a general duty to maintain a workplace free of recognized hazards, did not preempt Oklahoma's law that makes it a criminal offense to prohibit employees from keeping firearms in their locked vehicles on company property...

Circuit Snippets

Posted on February 24, 2009
These are interesting (to me, anyway) cases from around the country:The Eleventh Circuit added to the circuit split over suppression of identity evidence that is obtained as the result of an illegal search, coming down on the side of the 9th Circuit, which had held such evidence is never suppressible, US v...

Detention Order Affirmed in Child Abuse Case

Posted on February 20, 2009
US v. Begay, No. 09-211 (Feb. 18, 2009) (unpublished): The Tenth Circuit affirms the district court's decision to detain the defendant pending trial. Defendant was charged with assault with intent to do bodily harm to his nine-month-old daughter (the indictment alleges fracturing her skull, injuring her eye, and breaking her arm, legs and ribs)...

Defendant Sentenced Pursuant to FRCrP 11(e)(1)(C) Agreement Not Entitled to Resentencing

Posted on February 20, 2009
US v. Gage, No. 08-7075 (Feb. 18, 2009) (unpublished): A defendant who was sentenced pursuant to an 11(e)(1)(C) plea agreement to an agreed-upon sentence was not sentenced "based on a sentencing range that has been subsequently lowered by the Sentencing Commission," 18 USC 3582(c)(2), and therefore the district court should have dismissed the defendant's motion without considering it on the merits.

70-month Sentence for PWID of 2 Tons of Marijuana Reasonable

Posted on February 20, 2009
US v. Bugarin, No. 07-2272 (2/18/09) (unpublished): Defendant was convicted of PWID more than two tons of marijuana, which was found in the trailer of a truck he was apparently co-driving. He pled guilty. He was eligible for safety-valve and therefore did not face the mandatory 10-year minimum sentence...

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