Criminal Law

Piecemeal Dismissal of Claims Improper

Posted on August 12, 2008
Snyder v. Ortiz, 2008 WL 2961343 (8/4/08) (unpub'd) - In habeas case, the district court was wrong to dismiss the unexhausted claims and deny the other exhausted ones. A mixed petition must either be dismissed in its entirety without prejudice or the district court must deny all the claims on the merits.

Possible Old Chief Error Was Harmless

Posted on August 12, 2008
U.S. v. Riley, 2008 WL 3019438 (8/5/08) (unpub'd) - The 10th strongly hints it was wrong to allow the admission of evidence of the nature of the offense that the defendant was convicted of in a felon-in-possession case. But any error was harmless.

FRE 403 Violated by Admitting Gang Evidence, But Harmless

Posted on August 12, 2008
U.S. v. Brown, 2008 WL 2967708 (8/5/08) (unpub'd) - It was error in violation of Evidence Rule 403 to admit evidence of the defendant's membership in a drug-dealing gang to show his intent to distribute drugs. The 10th found it significant that the defendant was not charged with conspiracy...

Officers Not Entitled to Qualified Immunity Re: Excessive Force Claim that Cuffs Were Too Tight

Posted on August 08, 2008
Vondrak v. City of Las Cruces, ___ F.3d ___, 2008 WL 2967656 (10th Cir. 2008)In Sec. 1983 action against two cops and the city arising out of cops' arrest of Plaintiff for DWI. COA first determines it has no pendent jurisdiction over Plaintiff?s cross appeal and City?s appeal...

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Cop Should Not Have Arrested Plaintiff for Allegedly Concealing Identity

Posted on August 08, 2008
Keylon v. City of Albuquerque, ___ F.3d ___, 2008 WL 2967658 (10th Cir. 2008)In Sec. 1983 action arising out of cop?s arrest of Plaintiff, without probable cause, for concealing ID, the district court erred in denying Plaintiff judgment as a matter of law and erred in submitting the issue of qualified immunity to the jury...

Venue Challenge Preserved by General Motion for Judgment of Acquittal; However, Evidence was Sufficient to Prove Venue in Utah

Posted on August 08, 2008
United States v. Kelly, ___ F.3d ___, 2008 WL 2972731(10th Cir. 2008)Defendant did not waive his challenge to venue being proper in Utah?nothing on the face of the indictment alerted him to a venue issue, and it only became apparent when the government rested its case...

A Gamble that Didn't Pay Off: Detention Following Traffic Stop Justified by Reasonable Suspicion

Posted on August 08, 2008
US v. Thao, No. 07-8066, no WL citation yet (August 7, 2008) (unpublished):State trooper stopped out of state SUV for allegedly going 79 mph in a 75 mph zone. Trooper had reasonable suspicion for continued detention based on: (1) defendants claimed they had gone from Minneapolis to Reno for a quick gambling trip, but there were 500-700 unaccounted for miles; (2) the driver, Lor, was not authorized to drive the vehicle; (3) the SUV was rented by a third party who was not present on the trip; (4) the defendants said this third party lived in Minnesota, but documents indicated he was from Wisconsin; (5) unusual and increasing nervousness; (6) inconsistent stories about visiting family and friends in Reno, vis-a-vis gambling; and (7) a lack of luggage (there was a laundry basket full of clothes)...

No Constitutional Right to Have State Conduct DNA Test

Posted on August 08, 2008
Armijo v. Tapia, 2008 WL 3059465, No. 08-2095 (10th Cir. Aug. 6, 2008) (unpublished):Certificate of appealabitlity denied for state habeas petitioner. He failed to make a substantial showing of the denial of a constitutional right as required by 28 USC 2253(c)(2)...

Defendant Waived Challenge to Sentence Enhancement

Posted on August 05, 2008
U.S. v. Carrillo-Jaime, 2008 WL 2894033 (7/29/08) (unpub'd) - Another "caveat defense attorney" case. The defendant had waived, not just forfeited, his right to challenge the classification of a burglary as a "crime of violence" under U.S.S.G. § 2L1...

Wearing Similar Clothing to Person Sought Justified Stop

Posted on August 05, 2008
U.S. v. Goodlett, 2008 WL 2893912 (7/29/08) (unpub'd) - Rather slim evidence establishes reasonable suspicion to stop the defendant. Late at night the complainant thought she saw her ex-husband, who had threatened her life, near her home in violation of a protective order...

Search of House Upheld

Posted on August 05, 2008
U.S. v. Esterline, 2008 WL 2893819 (7/29/08) (unpub'd) - The 10th acknowledges finding drugs in a person's car does not necessarily establish nexus with the person's residence to justify a residence search. But in this case there was also evidence the defendant sold drugs from his residence.

Evidentiary Challenges Rejected

Posted on August 05, 2008
U.S. v. Tsosie, 2008 WL 2940800 (8/1/08) (unpub'd) - It was okay to present evidence defense witnesses belonged to the same gang as the defendant to show their bias. It was also okay to admit a threatening statement by one of the attackers, even if the defendant himself did not make the statement because the attackers were acting in concert...

Stored Guns Properly Counted for Enhancement

Posted on August 05, 2008
U.S. v. Bertollini, 2008 WL 2940675 (8/1/08) (unpub'd) - The 10th holds that guns stored for years in the defendant's ex-wife's home were "relevant" to his possession of two guns in his car to support a number-of-guns enhancement under § 2K2.1(b)(1).

Removal Did Not Moot Challenge to Sentence

Posted on August 05, 2008
U.S. v. Jurado-Lara, 2008 WL 2893974 (7/29/08) (unpub'd) - The defendant's challenge to a 16-month sentence was not moot, even though the defendant had finished his sentence and had been removed to Mexico. There were still sufficient collateral consequences attached to his sentence because, if his sentencing argument was correct, the upper end of his guideline range would be less than twelve months and his conviction for using false information and documents in violation of 18 U...

Prisoner Sufficiently Alleged Claim to Medical Care

Posted on August 05, 2008
Edmisten v. Werholtz, 2008 WL 2940794 (8/1/08) (unpub'd) - The 10th reverses a denial of a request for a preliminary injunction for medical care. The plaintiff had made sufficient allegations to warrant an injunction where: a doctor determined he needed immediate surgery to replace the prosthesis in his jaw ravaged by bone cancer, and prescribed pain medication, antibiotics and a special diet, while awaiting surgery by the only doctor capable of performing the surgery; the Kansas prison denied his medication, antibiotics and special diet and stalled off the surgery, including not transporting him to his surgeon, despite doctor's orders to do so, because the surgery would cost $100,000; the plaintiff suffered lots of pain, etc...

Offense Improperly Grouped

Posted on August 05, 2008
U.S. v. Hasson, 2008 WL 2894087 (7/29/08) (unpub'd) - It was reversible error to add the enhancement for one of the offenses (money laundering) after grouping all the offenses. Adding the enhancement to an offense that had a lower base offense level before grouping, as should have been done, would result in a 57-month reduction in the bottom of the guideline range.

Railroaded: Evidence in Backpack Linking Defendant to Drugs on Train Not Subject to Suppression

Posted on August 01, 2008
US v. Davis, No. 07-2101, 7/31/08 - Denial of motion to suppress, conviction by jury and sentence for conspiracy to distribute PCP affirmed. Defendant flew into LA from Vegas and was questioned by cops, who also searched his backpack. Inside were $12,000 cash and travel itineraries, including one for another guy, Stewart...

Witness Tampering Conviction Affirmed

Posted on August 01, 2008
US v. Stroup, 2008 WL 2914964, 7/30/08 - Friend's testimony, along with a letter written by the defendant to the friend soliciting him to "truthfully" testify that money the defendant wired to the friend was to allow friend to get his car fixed (instead of buying drugs with it), that mentioned witness tampering, and asked the friend to destroy the letter and not to tell anyone about it, was sufficient to support conviction for witness tampering under 18 USC 1512(b).

CA 2nd-degree Robbery Not Categorically a Crime of Violence

Posted on August 01, 2008
US v. Servin-Acosta, 2008 WL 2908932 7/30/08 - 16-level enhancement based on California conviction for 2d degree robbery in this reentry case reversed and case remanded for resentencing. Although a minute order, along with Border Patrol records, were sufficient to establish the fact of conviction, mere fact that "robbery" is an enumerated crime of violence under USSG 2L1...

Gov't Cannot Unilaterally Conclude Plea Agreement Breached to Justify Arguing for Higher Sentence

Posted on July 30, 2008
United States v. Cudjoe, ___ F.3d ___, 2008 WL 2893130 (10th Cir. 2008)Government breached ?the spirit and the letter? of the plea agreement in which it promised that it would stand mute, though would not support, any request by Defendant for a 30 year sentence...

"Vertical" Collective Knowledge Justified Stop

Posted on July 30, 2008
United States v. Chavez, ___ F.3d ___, 2008 WL 2893057 (10th Cir. 2008)Based on collective knowledge doctrine, state policeman, who had no probable cause, could legitimately stop and search Defendant?s vehicle at the direction of DEA agents who did have probable cause to stop and arrest Defendant...

Former Border Patrol Agents' Convictions Largely Affirmed

Posted on July 29, 2008
This is a Fifth Circuit decision, but it happened in El Paso, TX, right next door to me, so I'm including it here. The decision is available here.The Fifth Circuit yesterday mostly affirmed the convictions and sentences of former Border Patrol agents Ignacio Ramos and Jose Compean, convicted of various crimes after they shot an unarmed drug smuggler as he ran back to Mexico (he succeeded in escaping, too)...

U.S. v. Rodriguez, 2008 WL 2736747

Posted on July 28, 2008
U.S. v. Rodriguez, 2008 WL 2736747 (7/15/08) (unpub'd) - In an unauthorized use of a credit card case, the 10th affirms variance from 33 months to the stat max of 48 months on the grounds expressed by the district court that any term of incarceration would "simply be an interruption in the defendant's criminal career...

Leadership, Firearms Enhancements Upheld

Posted on July 28, 2008
U.S. v. Sallis, 2008 WL 2780594 (7/18/08) (Published) - The evidence supported a leadership upward adjustment. Supplying or fronting drugs is not enough to justify such an enhancement, but here, the defendant and his twin brother exercised joint decision-making authority re: the amount of drugs to purchase etc...

Numerous IAC Claims Rejected; Death Sentence Affirmed

Posted on July 28, 2008
DeLozier v. Sirmons, 2008 WL 2780595 (7/18/08) (Published) - The Court of Appeals affirmed another death sentence. The 10th reviewed, almost always under the stringent AEDPA standard, a number of ineffective assistance of counsel claims, holding in each case that counsel was not deficient...

Prisoner Entitled to Hearing on Application of Revised Good Time Policy

Posted on July 28, 2008
Henderson v. Sirmons, 2008 WL 2791911 (10th Cir. 7/21/08) (unpub'd) - because the record is unclear re: how corrections officials applied good time policy revisions to pro se inmate here, district court erred in denying his ex post facto claim without an evidentiary hearing...

Judgment of Acquittal for Mortgage Fraud Defendants Reversed

Posted on July 28, 2008
United States v. Carnagie, ___ F.3d ___, 2008 WL 2807466 (10th Cir. 2008) The Court of Appeals reverses the trial court?s grant of a judgment notwithstanding the guilty verdict on charges of conspiracy to defraud the United States and conspiracy to money launder...

Claim of IAC at Competency Hearing Rebuffed

Posted on July 28, 2008
Crawley v. Dinwiddie, ___F.3d ___, 2008 WL 2805410 (10th Cir. 2008)Because there is no clearly established federal Supreme Court law regarding a counsel?s duty to refrain from pressing his client?s claim of competency in the face of evidence of incompetency, plaintiff could not meet the AEDPA standard in his challenge to his attorney?s effective assistance in arguing for his competency at a state competency hearing.

Drug Conspiracy Convictions Affirmed

Posted on July 28, 2008
US v. Smith, 2008 WL 2814809, 7/23/08 - Drug convictions and lengthy sentence affirmed. Defendant ran a drug ring and was indicted for conspiracy and multiple distribution and related counts. One of her confederates had been convicted of murdering two women (a third woman somehow survived despite getting shot 7 times)...

Tenth Reinstates Gay Prisoner's Civil Rights Claims Against Prison Officials

Posted on July 28, 2008
Howard v. Wade, et al, 2008 WL 2814821 - The 10th reverses summary judgment in favor of most prison official defendants in this Eighth Amendment failure to protect civil rights case. The plaintiff, who is openly gay and of slight build, was repeatedly sexually abused and generally terrorized by members of a prison gang...

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