United States v. Wonschik, 02-1276 (January 6, 2004)

(Jill M. Wichlens, FPD, Denver, Colorado)

Wonschik was convicted of a violation of 18 U.S.C. § 922(o), transferring or possessing a machine gun. The definition of machine gun is found in 26 U.S.C. § 5845(b). The indictment followed the statutory language. The jury was instructed that, to find Wonschik guilty, the government had to prove that he knowingly possessed a machine gun, knew that he possessed a combination of parts from which a machine gun can be assembled. The instruction also stated that the term "machine gun" includes and weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger. The term also includes any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

HELD: (1) The statute does prohibit possession of a combination of parts from which a machine gun can be assembled, and the indictment charged Wonschik with possession of such parts. The dispute on appeal is how to define the term "machine gun" as it refers to the result of assembling the parts. Wonschik claimed that a machine gun means a gun actually capable of firing automatically, thus that the government was required to prove he knowingly possessed a combination of parts from which a functioning automatic weapon could be assembled. But the instruction defined "machine gun" more broadly to include weapons "designed to shoot" automatically, as well as weapons that actually shoot automatically. The government took the position on appeal that the definition of "machine gun" to include weapons designed to shoot automatically is perfectly consistent with the definition of § 5845(b).

(2) Review is for plain error due to lack of objection. There is some uncertainty in Tenth Circuit precedent as to whether a constructive amendment of an indictment by jury instructions to which the defendant did not object is reversible per se or reversible only where the amendment affects substantial rights and seriously affects the fairness, integrity or public reputation of judicial proceedings. The circuit did not resolve this question.

(3) The court rejected Wonschik's interpretation stating that his reading would result in giving the term "machine gun" two separate meanings within the same subsection of the National Firearms Act. The term "machine gun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically, in § 5845(b). The later appearing term should be given the same meaning as it was given in the first sentence of the statute. The court acknowledged confusing circularity to the treatment of "machine gun" in § 5845(b). The circuit resolved the confusion by relying on the grammatical structure of the subsection.

(4) There was no objection to the jurors' recitation of the pledge of allegiance. Wonschik does not claim he was compelled to recite the pledge, and he does not have third-party standing to raise claims on behalf of potential jurors.

(5) Wonschik also claims the jurors' recitation of the pledge, where the United States is a party, violates his right to fair trial because the jury is in effect pledging its allegiance to one party in the case. The circuit held that the pledge is to fidelity to uphold the nation's Constitution which is as likely to benefit a defendant as to prejudice him.

United States v. Aguilar-Tello, 02-2049 (January 6, 2004)

Aguilar was charged with illegal reentry after being deported in violation of 8 U.S.C. § 1326. The district court dismissed after concluding that his underlying deportation proceedings had been fundamentally unfair. A divided panel of the circuit initially affirmed. The circuit granted the government's petition for rehearing en banc.

At the time of Aguilar's deportation hearing, in 1994, an alien otherwise subject to deportation who had been lawfully in the country for seven consecutive years, could apply for a discretionary waiver from deportation. INA § 212(c). 8 U.S.C. § 1182(c) (1994) repealed effective September 30, 1996).

HELD: (1) When a previous deportation proceeding is attacked on constitutional grounds, the circuit is presented with a mixed question of fact and law reviewed de novo. The defendant has the burden of showing that the underlying deportation hearing was fundamentally unfair, and to do so he must show he was prejudice and that the unfairness of the deportation proceeding deprived him of his right to a direct appeal. The circuit affords the proceeding a presumption of regularity.

(2) The circuit held that Aguilar had no constitutional right to be informed of discretionary relief that might be available to him.

(3) A potential deportee is entitled to procedural due process, which provides an opportunity to be heard at a meaningful time and in a meaningful manner. Aguilar received that, and he was entitled to nothing more. There is no constitutional right to be informed of the existence of discretionary relief for which a potential deportee might be eligible. The circuit joined the majority of other circuits in so holding.

(4) Even if there were some obligation to inform Aguilar of his right to a § 212(c) waiver, the circuit held that the immigration judge fulfilled that. There is no dispute that Aguilar understood English, having lived in the United States since age four. The IJ told him he was not eligible for a pardon today, but would be tomorrow, and asked him if he wanted the case postponed. Aguilar responded, no. The IJ made it clear that there was a possibility Aguilar would be allowed to remain in the United States and avoid deportation. Aguilar was adamant that he wanted to return to Mexico. This circuit rejected the difference the district court saw between the availability of a "pardon" and a "waiver."

(5) The record does not support another finding of the district court that Aguilar was not given a list of free legal services prior to the deportation hearing. This finding is clearly erroneous.

(6) The failure of the IJ to inform Aguilar that his bond was set at $20,000 did not render the proceeding fundamentally unfair. The evidence is overwhelming that the availability of bond would not have affected his desire to forego any opportunity to seek relief from deportation and return to Mexico.

(7) In addition, Aguilar failed to demonstrate prejudice. The majority of circuits have not required an alien to show that the outcome of the proceeding would have been different in order to demonstrate prejudice. They require only that the alien demonstrate a reasonable likelihood that, but for the errors complained of, he would not have been deported. The circuit adopted the "reasonable likelihood" standard. Applying that standard, the circuit held that Aguilar failed to demonstrate prejudice.

United States v. Williams, 03-2065 (January 10, 2004)

(Richard A. Winterbottom, FPD, Albuquerque, New Mexico)

Williams was convicted of possession of a controlled substance with intent to distribute. Prior to trial he moved to suppress physical evidence.

HELD: (1) The court reviews fact findings of the district court for clear error and the legal conclusions regarding the legality of a search or seizure de novo.

(2) If Williams had failed to argue that the dog sniff constituted an illegal search failing to preserve the issue for appeal, review would be for plain error. But Williams did raise this issue though couched in different terms.

(3) The defendant must demonstrate some affirmative link between policeman's conduct and the evidence obtained. Williams failed to demonstrate any nexus between the allegedly illegal search and physical evidence obtained by police. Had the officers arrested Williams immediately upon the dog's alert and effective search of his baggage and person, the issue would be presented but that is not what happened. Williams' flight was provoked by the officer's request to search his person. Such request need not be supported by any degree of suspicion. Law enforcement may approach a person in a public place and ask questions, request information, or request permission to search without infringing a person's Fourth Amendment right. The officers' suspicions were aroused not by the dog alert but by Williams' evasive movement upon entering the bus station. The officers decided to approach him long before the dog ever alerted to the presence of drugs on his person. And it was Williams' voluntary abandonment of the package, prompted by the request to search his person, that provided police with the physical evidence of his criminal activity. Once Williams abandoned the package, he ceded any expectation of privacy in the package. There is no Fourth Amendment interest in abandoned property.

(4) Once a reasonable person would not feel free to terminate an encounter, the encounter requires reasonable suspicion. The ultimate issue is whether a reasonable person would feel free to terminate the encounter. A number of factors are considered. All of the indicators of a seizure were conspicuously absent. The encounter occurred in a relatively open space, none of the officers was uniformed, nor did they display a weapon. A reasonably innocent person would not feel sufficiently accused by the dog's behavior in sniffing his waste and groin area and then sitting next to him. Therefore Williams had not been seized at the time of his flight from the officers, and the package of drugs he abandoned was not the product of an illegal seizure.

(5) When the drug dogs sniffed and alerted, Williams volunteered that he had no drugs and offered permission for the officers to search his bag. He was responsible for prolonging the encounter.

Miller v. Mullin, 02-6199 (January 21, 2004)

Miller appeals from the district court's decision denying him habeas relief from his Oklahoma first degree malice aforethought murder convictions. He was sentenced to death. The jury found four aggravating factors: prior violent felony, murder was especially heinous and cruel, Miller killed a night clerk to avoid arrest or prosecution for robbery, and Miller was a continuing threat to society. The OCCA affirmed on direct appeal and denied Miller post conviction relief. Although the district court denied habeas relief, it granted a certificate of appealability on three claims: prosecutorial misconduct, ineffective assistance of trial and appellate counsel, and cumulative error. The circuit affirmed.

HELD: (1) This petition was filed after the effective date of the AEDPA so that the AEDPA standard of review governs. To be entitled to habeas relief, Miller must establish that the state court decision was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court.

(2) In closing argument, Miller claims the prosecutor used overly suggestive and previously unannounced illustrative devices. The prosecutor presented a transparency marked with the letters "JAy" and argued that these letters matched blood smears on the double doors and floor of the murder scene. Counsel did not object until the jury had retired to deliberate. The OCCA reviewed for plain error. The circuit applied the AEDPA's deferential standard of review to a claim of prosecutorial misconduct. Improper remarks will require reversal only if the remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process. Alternatively relief is granted if the misconduct denied the petitioner a specific Constitutional right. The circuit held that the OCCA appropriately considered this claim under plain error. The decision to allow the use of visual aids rests with the trial court. The use of this transparency was more akin to argument than evidence. However, there is an inherent risk in the use of such devices. They may unfairly emphasize part of the proof or create the impression that disputed facts have been conclusively established. The circuit could not say that the OCCA unreasonably applied federal law as to this issue. But given the lack of notice of the use of these transparencies, the circuit noted the potentially inflammatory nature of the comments. The circuit stated that it expects not just marginal but heightened courtroom ethics on the part of counsel, the government and the defense alike.

(4) As to the claims ineffective assistance, the state argues that these are procedurally barred. In the interest of judicial economy, the court stated the case may be more easily and succinctly affirmed on the merits. Claims of appellate counsel's ineffectiveness are often based on the failure to raise a particular issue on appeal. The court looks to the merits of the omitted issue. Miller could not establish ineffectiveness under Strickland. Because the circuit held that Miller's ineffective assistance of trial counsel claim lacked merit, his appellate counsel was not objectively unreasonable in failing to assert any portion of these claims on direct appeal.

(5) Miller claims the trial court's instruction on heinous and cruel aggravating circumstances when its unconstitutionally vague. The omission of the word "physical" from the definition was held to be harmless error by the OCCA. This circuit has repeatedly held that Oklahoma's current definition of this aggravator is not unconstitutionally vague. Despite the omission, this instruction performed its required narrowing function and imposed restraint upon the sentencor.

(6) Cumulative error is present when the cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error. The OCCA found five errors and determined that in the aggregate they were harmless. The circuit agreed.

United States v. Aptt and Murphy, 02-1555, 03-1028 (January 21, 2004)

(Brian K. Holland, Sean Connelly)

This is a consolidated appeal of two criminal defendants, Aptt and Murphy who were convicted on various counts of conspiracy, fraud, and money laundering. Their company took almost 14 million dollars from investors in a classic Ponzi scheme.

HELD: (1) Review of the district court's interpretation of the guidelines is de novo. Because they measure different types of harm to different victims, the fraud and money laundering offenses cannot be grouped. Although other circuits have disagreed, the circuit has continued to adhere to its prior precedent. The 2001 guidelines make it clear that money laundering of fraud proceeds should be grouped with the underlying fraud. The trial court delayed sentencing until after these guidelines went into effect. But these guidelines also revised the treatment of fraud and other economic crimes, resulting in substantially increased offense levels for fraud. This made sentencing under the new guidelines less favorable to the defendants than under the old guidelines. To avoid an ex post facto problem, the trial court applied the 1995 guidelines in effect when the crimes were committed. Under the so called "one-book" rule, the defendants cannot mix and match provisions from various versions of the guidelines.

(2) The one exception to this rule is that a subsequent amendment to the guidelines can be given retroactive effect if the changes are clarifying rather than substantive. Given the substantial alterations in the money laundering guideline which the Commission called a replacement guideline, the circuit was confident that the 2001 guidelines do not qualify for retroactive application.

(3) The defendants seek to distinguish Kunzman and Johnson. Unlike those cases, these defendants hoped that profits would take off so that they could make good on their exorbitant promises. However good their intentions, this does not affect the rationale of the circuit's prior cases.

(4) The circuit reviews the district court's fact findings as to amount of loss for clear error, but decides the factors a district court may properly consider de novo. The circuit accepted the government's conclusion that the total loss was 11.7 million dollars. The district court did not err in including unpaid interest in the amount lost. The difference in intention is again not relevant. The district court did account for 2.1 million dollars in interest payments that the defendants did make.

(5) Aptt challenges the four-level enhancement for leader or organizer of a criminal activity that involved five or more participants. The court reviews for clear error whether certain individuals are "participants."

(6) Murphy's first claim is that his conviction should be reversed because the key document linking him to the conspiracy, government exhibit 352, should not have been admitted. The document was an unsigned, undated memorandum to "John" from "Bruce and Doug." The document was a central piece of the evidence in the prosecution's case. The prosecutor characterized the document as a "smoking gun." Most of the document is recommendation rather than assertion, was probative not of the truth of the matter asserted, but rather of Doug Murphy's intent to keep the company alive by securing new investment with which to pay off old investors. Murphy argues that the document's attribution of authorship is hearsay: it is an out of court statement that he was an author of the document, admitted to prove the truth of the matter asserted, namely, that he was the author. Whatever the correct resolution of the legal question, the trial court was never given a chance to consider whether to exclude the document. Very early in the trial, the prosecution laid a foundation to admit an exhibit to which Mr. Murphy's attorney said "no objection." He also said that "all the exhibits are stipulated to."

(7) This claim should not be reviewed for plain error. Admission of a stipulated exhibit is not error at all. A defendant is free to waive objections to evidence by stipulation. Nor can trial counsel's words be considered an inapt choice of words.

(8) United States v. Olano distinguishes between waiver, the intentional relinquishment or abandonment of a known right, and forfeiture, the failure to make the timely assertion of a right. While there is no appeal from violation of a waived right, the violation of forfeited rights may be reviewed on appeal under plain error. The circuit concluded that a stipulation is a clear example of waiver.

(9) Because waiver of particular rights may be governed by heightened standards, the court considered whether the right is waivable, whether the defendant must participate personally, whether certain procedures are required, and whether the defendant's choice must be particularly informed or voluntary. All of this depends on the right at stake. An attorney cannot waive certain basic rights without the consent of the client. But an attorney must full authority to manage the conduct of the trial. Rights in the domain of trial strategy can be waived by counsel even in the face of client disagreement. The court then considered whether and how a defendant can waive the right to exclude hearsay under the confrontation clause and related federal rules of evidence. The circuit has previously held that counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant did not dissent from his attorney's decision and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy. The defense's best theory was that the various documents exonerated Murphy by showing that he had also been duped by Aptt. Furthermore, defense counsel's oversight had the effect of inducing the government and trial court from having a proper foundation laid. A defendant cannot invite a ruling and then have it set aside on appeal. A waiver that is invalid as soon as a party thinks of a new reason for asserting the waived right is no waiver at all.

(10) The court ordinarily requires that a claim of ineffective assistance of counsel be raised in a collateral attack. Without reaching any claim of ineffectiveness, the court concluded that defense counsel's stipulation waived Murphy's rights and rendered the exhibit's admission unreviewable.

(11) The district court enhanced Murphy's sentence for manager or supervisor. This is reviewed for clear error. The defendant must have been an organizer, leader, manager, or supervisor of one or more other participants. Courts rely on circumstantial evidence to discern the nature of supervisory relationships among participants. This circuit has found that the factors set forth in application note 4 are relevant in determining whether a defendant is a manger or supervisor, though, by its terms, the note applies only to choosing between a four-level and three-level enhancement. The circuit found the evidence sufficient but noted that the district court never made specific findings that Murphy supervised Gallegos or any other participant, lending credence to Murphy's theory that the judge mistakenly focused on his role in managing the operations, not managing other participants. Nonetheless, based on what the trial court did site, the circuit found it fair to conclude that the trial judge implicitly found the Murphy supervised any and all participants below him. Therefore the circuit held that the trial court applied the correct legal standard and its factual determinations are not clearly erroneous.

(12) In addition, this issue was not raised below and review is for plain error. The court declined to correct any such error in this case.