TENTH CIRCUIT DECISIONS
JULY 2004
Sufficient Evidence - Review Standard
Admission of Evidence - Discretion, Rule 404(b), Threat
Traffic Stop
Conspiracy - Elements
United States v. Nichols, 03-3284 (July 6, 2004)
Nichols was convicted after trial of conspiracy and distribution of approximately 4.6 kilos of heroin.
Nichols was stopped by police on three separate occasions in three different states over two and a half years, each while traveling on a stretch of I-70 / I-80 that runs between St. Louis, Missouri and Sacramento, California.
The first stop took place in Wyoming and involved the discovery of marijuana. Nichols pled guilty to interference with lawful police duties and other traffic violations, and the state dropped the marijuana possession charge. In 2000, Nichols was stopped in St. Louis. The vehicle contained marijuana. This stop led to the search of an apartment and the discovery of more marijuana and currency. In addition, Dormin capsules, used as a cutting agent for heroin, were found in the apartment. No charges were filed as an immediate result of this incident.
The third traffic stop occurred in 2002 in Kansas. Again, marijuana was discovered as well as black tar heroin. Nichols and others were indicted on the present federal charges.
Before trial, Nichols filed motions to suppress evidence seized in the St. Louis and Kansas stops and the St. Louis apartment search. He moved in limine to exclude testimony about the Wyoming stop. The district court denied these motions. At trial, Nichols objected to the agent’s testimony concerning an alleged threatening statement Nichols made. The district court overruled that objection. Nichols was convicted on both possession and conspiracy charges.
HELD: (1) The court views the evidence in the light most favorable to the government and reviews the ultimate determination of reasonableness under the Fourth Amendment de novo. A traffic stop is reasonable if based on an observed traffic violation, or if the police have reasonable, articulable suspicion that a traffic or equipment violation has occurred. A vehicle must be permitted to proceed on its way if a license and registration check reveal no reason to detain it, unless the officer has reasonable, articulable suspicion of other crimes or the driver voluntarily consents to further questioning. As to the St. Louis stop, police had observed two traffic violations and an odor of marijuana, and had information received from a confidential informant, providing probable cause to arrest. As to the Kansas stop, the district court’s finding that the vehicle was following less than two seconds behind an RUV, was not clearly erroneous. White, another defendant, consented to further questioning so the stop became consensual. The search of the St. Louis apartment was consented to by its tenant.
(2) The circuit reviews evidentiary rulings for abuse of discretion. Nichols sought to exclude the Wyoming stop under Rule 404(b), but where a defendant is charged with conspiracy, evidence of acts committed in furtherance of a conspiracy is considered intrinsic evidence. The indictment specified a time period for the conspiracy beginning sometime before the date of the Wyoming stop.
(3) The district court’s ruling as to testimony about a threatening statement is also reviewed for abuse of discretion. Rule 404(b) applies. The threat was not admissible for purposes of showing consciousness of guilt, because the threat was made to an officer at the time of the arrest, and not to a potential witness. The court held that, even if admission of this testimony was an abuse of discretion, the error was harmless because there was other substantial evidence of guilt.
(4) In assessing sufficiency of the evidence, the court views the evidence in the light most favorable to the government and determines whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. The court does not weigh conflicting evidence or the credibility of witnesses.
(5) To support a conspiracy conviction, the government must prove that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, that defendant knowingly and voluntarily became a part of it, and that the alleged co-conspirators were interdependent. The secrecy inherent in a conspiracy often requires that proof be by circumstantial evidence. It is permissible for the jury to infer an agreement from the acts of the parties and other circumstantial evidence. Such an inference is not precluded just because the co-defendants were acquitted of the conspiracy charge. The inference is permissible when the indictment indicates the conspiracy involved unknown or unnamed persons, and there is sufficient evidence that the convicted defendant had an agreement with a co-defendant, the co-defendant’s acquittal notwithstanding. Here the indictment referred to persons whose identities were known and unknown. And an acquittal may simply the result of the jury’s mistake or compromise, rather than a conclusion that the co-defendant’s are not guilty beyond a reasonable doubt.
Guilty Plea - Conditional, Claim Not Preserved, Analogy to Appeal Waiver
United States v. Anderson, 03-1137 (July 6, 2004)
(Virginia L. Grady, FPD, Denver, Colorado)
Anderson was indicted on a charge of unlawful possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §922(g). He entered a conditional guilty plea, reserving his right to appeal the district court’s order regarding the denial of his motion to suppress evidence and statements.
HELD: (1) Although a defendant may not normally appeal his conviction after pleading guilty, with the consent of the court and government, a defendant may enter a conditional plea of guilty, reserving in writing the right to appellate review of an adverse determination of a specified pre-trial motion. The circuit held that the claim of an improper pat-down was not preserved by the plea agreement. The circuit looked at its Hahn decision on waivers of right to appeal, and held that Hahn’s analytical structure is applicable to a conditional plea agreement that waives the right to appeal a conviction. The court applied the three-prong analysis in Hahn.
(2) In determining a waiver’s scope, the court strictly construes appeal waivers, and any waivers are to be read against the government. Other circuits require that the plea agreement specifically mention the argument to be preserved for appeal. In the non-waiver cases, a party may not raise on appeal specific theories not presented before the district judge. Therefore, Anderson did not preserve the improper pat-down issue.
(3) The court will only enforce waivers to which a defendant knowingly and voluntarily agreed. The defendant bears the burden to prove he did not knowingly and voluntarily enter the agreement.
(4) The court also considers whether enforcement of the appeal waiver would result in a miscarriage of justice. The burden rests with the defendant. Enforcement of this waiver would not constitute a miscarriage of justice.
Appellate Jurisdiction - Timely Notice of Appeal, Finding of Excusable Neglect
Speedy Trial Act - Review, Purpose, Excludable Time Due to Pretrial Motions or Delay Attributable to Co-Defendant
United States v. Vogl, 03-1132 (July 7, 2004)
(Philip A. Cherner, Denver, Colorado)
Vogl entered a conditional plea of guilty to cultivating marijuana and appealed on the ground that his rights under the Speedy Trial Act had been violated. The circuit had previously held that the district court erred in finding an “ends of justice” continuance, and remanded to the district court to determine whether the speedy trial clock had expired. On remand, the district court held that the Speedy Trial Act had not been violated. The circuit affirmed.
HELD: (1) In the course of this appeal, the circuit questioned the timeliness of Vogl’s notice of appeal. Vogl submitted the district court’s order holding that Vogl had made a showing of excusable neglect for the late filing of his appeal. The circuit reviews sua sponte its jurisdiction. Pursuant to Rule 4(b), a defendant has 10 days after entry of the order being appealed to file a notice of appeal. An order is entered when it is entered on the criminal docket. The district court’s order denying defendant’s motion to dismiss for violation of speedy trial was docketed on March 14, and the 10 days expired on March 28. The notice of appeal was not filed until March 31. If a district court finds excusable neglect or good cause, it may extend the time to file a notice of appeal up to 30 days after expiration of the original deadline. The court must take account of all relevant circumstances. The factors to consider are danger of unfair prejudice to the non-moving party, the length of delay, potential impact on judicial proceedings, the reason for delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. The circuit would not overturn a district court’s finding of excusable neglect unless there is a clear abuse of discretion. Inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect. If the district court’s findings were based solely on counsel’s misunderstanding of Rule 26(c), the circuit would likely reverse and dismiss for lack of jurisdiction. But because the district court found excusable neglect on other bases as well, including only a brief delay and other factors, the court could not say that the district court abused its discretion in finding excusable neglect, and therefore the circuit had jurisdiction.
(2) The court reviews the denial of a motion to dismiss for violation of the Speedy Trial Act for an abuse of discretion and reviews compliance with legal requirements of the Act de novo. The purpose of the Speedy Trial Act is to protect a defendant’s constitutional right to speedy indictment and trial, and to serve the public interest in bringing prompt criminal proceedings. The Act mandates that a trial begin within 70 days of the filing date of the indictment or the defendant’s first appearance, whichever occurs later. The sanction for violation of the Act is dismissal of the indictment. The Act provides exclusions for specific delays that are not counted toward the 70-day limit. Two exclusions pertinent here are the exclusion for reasonable delay attributable to proceedings regarding a co-defendant and an exclusion for pre-trial motions.
(3) With regard to delay attributable to a co-defendant, under 3161(h)(7), the question is whether the delay was reasonable. The court examines all relevant circumstances and considers whether the defendant is free on bond, whether the defendant zealously pursued a speedy trial, and whether the circumstances furthered the purpose behind the exclusion to accommodate the efficient use of prosecutorial and judicial resources in trying multiple defendants in a single trial. The district court correctly excluded November 8 and 9 from the speedy trial clock due to the government’s motion for reconsideration of the order granting co-defendant’s motion to suppress. The defendant was free on bond and the delay would accommodate the efficient use of resources.
(4) The court held the defendant was incorrect in arguing that a motion that causes no actual delay of trial is not a pre-trial motion under Section 3161(h)(1)(F). The circuits are unanimous in holding that actual delay is not required for excluding time attributable to a pre-trial motion under subsection (F). The circuit adopted the reasoning of its sister circuits. Therefore the circuit affirmed the district court’s holding that Vogl’s rights under the Speedy Trial Act had not been violated.
Habeas Corpus (28 U.S.C. § 2241) - Execution of Sentence, Revocation of Good Time Credits
Exhaustion of State Remedies
Disciplinary Convictions - Insufficient Evidence of Violation of State Law
Gamble v. Calbone, 03-6057 / Popejoy v. Ward, 03-6150 (July 13, 2004)
Gamble and Popejoy appeal from the denial of their habeas petitions brought pursuant to 28 U.S.C. §2241. They alleged violation of due process because the warden revoked earned credits in prison disciplinary proceedings for criminal acts they did not commit. The circuit granted a certificate of appealability on the issue of whether some evidence supports their disciplinary convictions. The court granted a COA on an additional issue raised by Popejoy. The cases have been combined for judicial economy. The circuit held no evidence supports the disciplinary convictions. The circuit reversed and remanded in order for the district court to issue the writ in both cases.
HELD: (1) Before a habeas petition may be granted, a petitioner must exhaust state remedies. But there are no state court remedies recognized in Oklahoma for immediate judicial review of the sufficiency of the evidence to support a prison disciplinary conviction. There is no state-exhaustion requirement for Oklahoma inmates challenging the merits of a disciplinary board revocation of earned credits where the inmate is seeking only speedier, and not immediate, release.
(2) The circuit reviews the district court’s legal conclusions de novo. The court asks whether there is any evidence in the record to support the conclusion reached by the disciplinary board. The disciplinary board had concluded that both inmates violated a state criminal law punishable by revocation of earned credits. There is no question the inmates requested disbursements from their savings accounts to pay court copy costs associated with the prospective filing of their state petitions for post-conviction relief. The question is whether, by making this request, the inmates violated Oklahoma law. Respondent states that the two were found guilty of misconduct by seeking to withdraw money for an improper purpose. The record shows that the inmates were convicted and disciplined for violating a state criminal law prohibiting obtaining money under false pretense. Neither inmate was charged with violating a prison regulation. The prison regulation does not impose any requirement on an inmate to ensure that his request is for an allowable expenditure, or warn that an attempt to obtain money in savings by making a request that may be disapproved is a rule violation subject to prison discipline. Indeed, the policy states that appropriate staff will approve or disapprove the disbursement request.
(3) In order to affirm a conviction for obtaining money by false pretenses, there must be evidence that the inmates attempted to obtain money by means of a trick, deception, or false representation. It is necessary that they knew it was a trick, deception, or false representation and that they had the intent to cheat and defraud. But fees or costs reasonably include photocopy charges imposed by a court clerk for obtaining official records and transcripts. The circuit did not interpret this to be limited to only filing fees. The inmates’ understanding that requesting disbursement from their mandatory savings for the costs of obtaining their transcripts was a legal request is justified under Oklahoma case precedent and legislative history. Gamble’s and Popejoy’s requests were reasonable, negating any inference that they knew they were requesting money for an illegal purpose or had the intent to cheat or defraud anyone.
(4) To satisfy due process, there must be some evidence to support the findings made in a disciplinary hearing. There is no evidence to support a finding that either Gamble or Popejoy violated Oklahoma law, and thus, no findings or evidence to support the conclusion that either inmate committed misconduct that could be sanctioned or disciplined.
Sufficient Evidence - Review Standard
False Statement (18 U.S.C. § 1001) - Elements, Materiality
United States v. Finn, 03-1354 (July 13, 2004)
(Michael P. Zwiebel, Denver, Colorado)
Finn, a former special agent with the Office of the Inspector General of the United States Department of Housing and Urban Development, appealed his conviction of knowingly and willfully making a false statement in violation of 18 U.S.C. §§1001(a)(3) and 2. Finn argued that the evidence was insufficient to satisfy the materiality requirement. The circuit agreed and reversed the conviction.
HELD: (1) In reviewing the sufficiency of the evidence to support a conviction or a denial of a motion for judgment of acquittal, the court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt. In moving for judgment of acquittal at the close of the government’s evidence, the district court reserved ruling on that motion until after trial. The circuit decides the sufficiency question on the basis of the evidence at the time the ruling was reserved, without regard to the evidence presented by Finn.
(2) To obtain a conviction for making a false statement, the government must prove the defendant made a statement, that was false and that the defendant knew was false, the statement was made knowingly and willfully, the statement was made within the jurisdiction of a federal department or agency, and the statement was material. Finn challenges only the element of materiality, arguing there was no evidence that the altered statement on the TOW receipt, changing the reference to “storage” was material. He also urges that the evidence was uncontroverted that the misstatements in the receipt attached to the case expenditure form were not capable of influencing any specific decision that HUD was required to make. To be material, a statement must have a natural tendency to influence, or be capable of influencing the decision of the decision-making body to which it was addressed. All the evidence, that may have been sufficient to support the finding of materiality, was presented after the government had rested its case, after Finn moved for judgment of acquittal, and after the district court had reserved ruling on the motion. The circuit reversed and remanded with directions for the district court to enter a judgment of acquittal with respect to count two of the indictment.
Sufficient Evidence -Review Standard
Bank Robbery - FDIC Insured, Manner of Proof
Instructions - Review Standard, Aid and Abet, Surprise
Aid and Abet - Not an Independent Crime, Principal an Accessory
Access to Law Library – Due Process, Standby Counsel as Equivalent
Appellate Review- Claim Not Raised Below
Three Strikes Law Sentence
United States v. Cooper, 03-4019 (July 19, 2004)
Cooper was charged with bank robbery in violation of 18 U.S.C. §2113, and using a firearm while committing a crime of violence in violation of 18 U.S.C. §924(c). After trial, a jury found him guilty on both counts.
HELD: (1) To determine whether the evidence is sufficient to uphold a conviction, the court examines, in the light most favorable to the government, all the evidence together with reasonable inferences to be drawn therefrom, and asks whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt. The jury is responsible for weighing witness credibility and testimony.
(2) Proof that the financial institution was insured by the FDIC at the time of the robbery is an essential element of bank robbery that the government must prove beyond a reasonable doubt. The circuit will not disturb the district court’s conduct of trial proceedings, unless it appears that the court abused its discretion. The court could not say that the district court abused its discretion in admitting testimony regarding the fact that the bank was insured. The court also allowed another witness to testify about a document as an “FDIC record”. The court had found that the witness did not testify as an expert and admitted the exhibit into evidence. The government may prove a bank was FDIC-insured at the time of the robbery in a variety of ways. The testimony and the exhibit constitutes sufficient evidence.
(3) The court examines jury instructions as a whole and reviews de novo the propriety of an individual jury instruction to which objection was made at trial. It is well established that aiding and abetting is not an independent crime under 18 U.S.C. §2. It simply abolishes the common-law distinction between principal and accessory. Consequently, a defendant can be convicted as an aider and abettor even though he was indicted as a principal for commission of the underlying offense and not as an aider and abettor, providing that commission of the underlying offense is also proven. The circuit failed to perceive how defense counsel was misled as to the nature of the charge. Cooper urges that he was the only person charged with the robbery. But it was defense counsel who suggested that a second individual was involved, and therefore counsel sacrificed the argument that Cooper was unfairly surprised by a subsequent aiding and abetting instruction.
(4) Cooper argues that he was denied due process because the district court refused his request for access to a law library. He acknowledges that he waived the right to counsel, but contends his waiver was involuntary because five attorneys represented him before he elected to proceed pro se. To the extent Cooper raises for the first time on appeal the voluntariness of his waiver of counsel, the court did not consider this argument because it was not presented to the district court. The court reviews de novo whether a defendant’s due process rights have been violated. Prisoners have a fundamental constitutional right of access to the courts and must be provided with an adequate law library or adequate assistance from persons trained in the law. Provision of legal counsel is a constitutionally acceptable alternative to a demand for access to a library. When a prisoner waives his right to counsel, he is not entitled to access to a law library or other legal materials. Cooper waived the assistance of counsel and decided to proceed pro se. The magistrate had appointed stand-by counsel, which is the equivalent of library access.
(5) The district court imposed a life sentence under the federal “three-strikes” law based on commission of at least two prior violent felonies. The rule in Apprendi does not apply where Apprendi makes an exception to facts concerning prior convictions. The recent decision in Blakely reaffirmed this exception. Cooper disputed that the government had shown he was the Todd Copper convicted in the certified court documents of five prior serious felony convictions. After the government introduced the certified copies of conviction, the district court must conduct a hearing only if the defendant tenders evidence denying that the prior convictions pertained to him or her. Cooper tendered neither his own testimony nor any other evidence that the prior convictions were not his. He was correctly sentenced to life imprisonment under the three-strikes law.
Motion to Suppress -Review Standard
Probable Cause to Arrest
United States v. Soto, 03-2176 (July 21, 2004)
Soto conditionally pleaded guilty to conspiracy to possess with intent to distribute more than 500 grams of cocaine. He appeals the denial of his motion to suppress.
HELD: (1) The circuit reviews de novo whether the historical facts found by the district court support its determination that the search and seizure satisfied the Fourth Amendment. Probable cause to arrest exists only when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Soto argues he was arrested solely because he was present at the gas station, before officers developed a sufficient factual basis for a warrantless arrest. Soto is correct that nearness to the place of the arrest of a co-conspirator or to the place of illegal activity is not sufficient to establish probable cause. But there is much more than simple proximity here. Evidence of counter-surveillance may support a finding of probable cause. The connection between the occupants of the two trucks became obvious when they left the parking lot. The occupants of the white truck were known to have come to the gas station solely to deal cocaine, so the blue truck’s occupants were linked to criminal activity. Based on the totality of the circumstances, the circuit concluded that the stop of the blue truck and Soto’s arrest were supported by probable cause.
Threatening Communications - Statutory Interpretation, Meaning of Addressee and Person As Used in the Statute
Sufficient Evidence - Review Standard
Law of the Case Doctrine
Admission of Evidence - Discretion
United States v. Williams, 02-1519 (July 20, 2004)
(Robert W. Pepin, FPD, Denver, Colorado)
Williams was convicted after jury trial of seven counts of mailing threatening communications. While serving a ten-year sentence for attempted rape, Williams began to mail numerous threatening letters. He continued these mailings when he was transferred to federal prison and included bomb and sexual mutilation threats. A United States Marshal interviewed him and he admitted to writing and sending the threatening letters. Prior to trial, Williams moved in limine to exclude letters which he argued were inadmissable because they contained uncharged threats to various individuals and entities. The motion was denied in part and three of the documents were admitted over objections. The judge gave limiting instructions.
At trial, Williams testified that he caused each of the letters to be mailed and had labeled them as legal mail. He testified he intended the recipients to take the threats seriously. Following closing arguments, the jury asked whether the phrase “addressed to a person” meant the address on the envelope or the greeting in a letter, and whether the communications had to be addressed to a named individual as opposed to an office. The court gave a supplemental instruction stating that the addressee on the face of the envelope controls, that an agency of the federal government is not a person within the meaning of 18 U.S.C. § 876, and that an official of the federal government may be a person within the meaning of the statute, even if not identified by proper name. The government objected to this instruction. Williams moved for judgment of acquittal. The court took the motion under advisement and denied it after the jury returned guilty verdicts on all counts.
HELD: (1) The court reviews the sufficiency of the evidence to support a conviction or the denial of a defendant’s motion for judgment of acquittal de novo. The circuit reviews the evidence in the light most favorable to the government to determine whether a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt. Williams argued that no rational jury could have found him guilty because the supplemental instruction directed the jury to consider the addressee on the envelope and stated that a government agency is not a person, and therefore the jury’s verdict cannot be justified on the basis of the letters’ salutations or contents.
(2) The court did not need to decide whether the evidence was sufficient because the doctrine of the law of the case does not apply under the circumstances. The law of the case is applied to hold the government to the burden of proving each element of a crime as set out in the jury instructions to which it fails to object, even if the unchallenged jury instruction goes beyond the criminal statute’s requirements. In cases to which the doctrine of law of the case applies, the evidence must conform to the unchallenged jury instructions to support a conviction. The doctrine of law of the case is an equitable remedy whose purpose is to prevent the government from arguing on appeal a position which it abandoned below. But here, the government did object to the supplemental instruction. That instruction did not become law of the case because the rationale which drives the doctrine in this context, holding the government to a charge to which it did not object, has no bearing when the government objects to the instruction in the district court.
(3) The court decided that it could look at both the envelope and the salutation to determine whether the letter is “addressed to any other person.” This is a question of first impression. Plain meaning controls statutory interpretation. The court looks to the particular statutory language, as well as the language and design of the statute as a whole. The definition of “address” does not exclude the salutation of a letter.
(4) Also of first impression is the question of whether a government official is a person within the meaning of §876. The circuit held that a government official is such a person. Section 876 is ambiguous because it does not define the word “person.” The court looks at Congressional intent and the purpose of the statute. The purpose of the statute would be frustrated by interpreting the word “person” to exclude government officials. The evidence was sufficient to support the convictions on all counts.
(5) The district court’s decision to admit evidence is reviewed for an abuse of discretion. Even if admission of the letters was error, the error was harmless. Any error in admitting the challenged evidence was harmless because evidence of Williams’ guilt was overwhelming.
Indictment - Dismissal
Illegal Alien - Possession of Firearm ( § 922(g)(5)(A)) Not Limited to Aliens Subject to Removal Order
United States v. Atandi, 03-4014 (July 23, 2004)
Atandi entered the United States as a tourist. He received student visa status. He stopped attending classes. Consequently, the INS initiated removal proceedings. A month earlier, Atandi had married a lawful permanent resident. When he faced the prospect of removal, his wife filed a petition for alien relative on his behalf. The INS approved her petition, and officially established their marital relationship for immigration purposes, one prerequisite that had to be satisfied before Atandi could apply for permanent residence or adjustment of status. But he did not file an application to register permanent residence. Subsequently, an immigration judge found Atandi deportable. But he was not deported then as the immigration judge scheduled a hearing on the issue of relief from removal. Atandi was arrested for possessing various firearms and ammunition while illegally or unlawfully in the United States and was charged in a single indictment under 18 U.S.C. §922(g)(5)(A). The district court dismissed the indictment on the ground that Atandi’s presence in the country was not illegal or unlawful.
HELD: (1) The government can establish that a defendant was illegally or unlawfully in the United States if it proves that the defendant was in this country without authorization at the time he or she possessed firearms or ammunition. The district court had concluded that, even though Atandi had violated the conditions of his student visa, he was authorized to remain in the United States because no final removal order had been issued and because the government had approved his wife’s petition for alien relative on his behalf. The circuit reviews de novo the district court’s dismissal of the indictment based on its interpretation of the underlying criminal statute. The circuit held the dismissal of the indictment was improper.
(2) Section 922(g)(5)(A) is not limited to aliens subject to a removal order. If Congress intended this prohibition to apply only to aliens subject to a removal order, Congress would have said so. An administrative regulation interpreting §922(g)(5)(A) makes clear that an alien who violates the conditions of his or her status is illegally or unlawfully in the United States regardless of whether he has actually been ordered removed.
(3) The approved petition of Atandi’s wife does not authorize an alien to stay in the United States, and therefore does not list §922(g)’s firearm restriction.
Habeas Corpus (28 U.S.C. § 2254) - Death Penalty, Review Standard
Evidentiary Hearing
Ineffective Assistance of counsel - At Sentencing Requires Reversal
Procedural Default - Oklahoma’s Procedural Rule Not Adequate to Bar Review
Prosecutorial Misconduct
Mental Incompetency
Confession
Instructions - Mitigation, Future Dangerousness
Smith v. Mullin, 02-6055 (July 29, 2004)
Smith was sentenced to death for the 1993 murders of his wife and stepchildren. He petitioned for writ of habeas corpus. The circuit affirmed in part, reversed in part, and granted a writ of habeas corpus vacating Mr. Smith’s death sentence, with the condition that the state resentence Smith within a reasonable time.
HELD: (1) As to fact findings underlying claims which the OCCA decided on the merits, the circuit will presume those facts true unless rebutted by clear and convincing evidence. As to fact findings underlying claims for which the federal district court granted an evidentiary hearing and for which the OCCA made no fact findings, the circuit reviews for clear error. The Oklahoma courts refused to grant Smith’s request for an evidentiary hearing on any of the claims. The federal district court found that Smith met the standard for an evidentiary hearing as to ineffective assistance of counsel.
(2) The court will not review Smith’s claims if they were defaulted in state court on independent and adequate state procedural grounds, unless Smith can demonstrate cause and prejudice or a fundamental miscarriage of justice. Independent state procedural grounds are those that rely exclusively on state law as a basis of decision. Whether a state procedural default rule is adequate to preclude federal review depends on how consistently and even-handedly the state applies the rule. Smith first raised an ineffective assistance claim in his application for post conviction relief. The OCCA held that Smith had procedurally defaulted the claim by failing to raise it on direct appeal. The federal district court reached the merits, but did so based on the overly broad application of the exception to state procedural bar recognized in an earlier Tenth Circuit case. Although the district court wrongfully applied Walker to excuse Smith’s procedural default, Smith’s ineffective assistance of counsel claims are properly before the court under the traditional federal standards for evaluating when a state procedural bar should be excused. In English, the circuit determined that Oklahoma’s procedural rules would preclude habeas review only when trial and appellate counsel differ and the claim can be resolved upon the trial record alone. Extra-record facts are essential to the vast majority of ineffective assistance claims. Oklahoma enacted new statutory rules to govern capital cases, permitting the OCCA to remand a direct appeal for an evidentiary hearing on ineffective assistance when the claim requires fact finding outside the direct appeal records. The OCCA had narrowly construed this statute to allow remand only if the relevant evidence was not available to the defendant’s attorney at the time of appeal. In subsequent capital cases, the circuit has placed the burden on the state to show that this procedural mechanism has been consistently and even-handedly applied and is thereby adequate to bar our review. The state has made no such showing. Therefore the claims are not procedurally barred.
(3) Smith claims prosecutorial misconduct. Where an issue may be more easily affirmed on the merits, judicial economy counsels in favor of such disposition, rather than procedural ground. As instances of prosecutorial misconduct, Smith cites attacks on defense experts, appeals to passion and prejudice, improper revelation to the jury that Smith invoked his right to counsel, and other specific claims. These are reviewed for violation of due process. The circuit held that it had found many improper statements, but none that resulted in denial of due process. If prosecutorial misconduct impacts a specific right, the circuit will apply the constitutional standard applicable to that right. The circuit considered the facts surrounding revelation of Smith’s invocation of the right to counsel.
(4) Smith claims that counsel was ineffective for a number of reasons. The circuit discussed the two-prong test of Strickland v. Washington. Counsel’s
performance gave the circuit pause, but the circuit was not convinced that Smith was prejudiced.
(5) Smith argues that counsel was ineffective in failing to assert his incompetency after the initial competency hearing. A claim of incompetency raises theories of both substantive and procedural due process. Failure to observe procedures to protect a defendant’s right not to be tried while incompetent deprives him of due process. The evidence as to competency was mixed. The circuit concluded that Smith could not show prejudice resulting from any deficiencies in counsel’s performance with respect to procedural incompetency or substantive incompetency.
(6) Smith argues that counsel should have tried to keep his confession out of the trial. A waiver must be made voluntarily, knowingly, and intelligently. Smith cited his mental retardation, mental illness, and police misrepresentation. The circuit disagreed, holding that the totality of the circumstances support the conclusion that Smith made a knowing and intelligent waiver of his Miranda rights. Smith has not shown there is a reasonable probability that, but for counsel’s unprofessional errors, the jury would have acquitted him.
(7) The district court gave two mitigation instructions which Smith claims created a reasonable likelihood the jury applied the instructions in such a way as to preclude consideration of his mental impairment. The OCCA disagreed. The circuit could not conclude that the OCCA’s determination of this claim was contrary to federal law or an unreasonable application thereof.
(8) When a capital defendant’s future dangerousness is at issue and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant to inform the jury of his parole ineligibility. The court found no basis to give Smith relief on this claim.
(9) Smith also challenges counsel’s assistance to him at sentencing. The sentencing stage is the most critical phase of a death penalty case. Lack of resources and expertise, plus the press of counsel’s other caseload, worked to Smith’s detriment. Counsel admitted at the evidentiary hearing that he was unaware that Smith’s mental state or illness could be introduced as mitigation in the second stage. Counsel often sounded like he was arguing on behalf of the state. The mitigation evidence that was available was significant. Smith’s mental retardation, brain damage, and troubled background constituted mitigating evidence. The jury had evidence of Smith’s impulsiveness and lack of emotional control. What the jury lacked was an explanation of how Smith’s organic brain damage caused these outbursts of violence. Mitigation evidence affords an opportunity to humanize and explain. Smith presented evidence sufficient to undermine the circuit’s confidence in his death sentence. His counsel failed to afford him an adequate representation in the sentencing phase and he is entitled to relief.