TENTH CIRCUIT DECISIONS
AUGUST 2004
Habeas Corpus (28 U.S.C. § 2254) -AEDPA Standards, Adjudication on Merits
Prosecutorial Misconduct - Review Standard
Double Jeopardy Clause - Recidivism
Gipson v. Jordan, 02-6261 (August 2, 2004)
(Susan M. Otto, FPD, Oklahoma City, Oklahoma)
In this appeal, the warden seeks review of a conditional grant of habeas release to an Oklahoma state prisoner. The question is whether prosecutorial remarks referencing Gipson’s prior convictions impermissibly infringed upon his right to be free from double jeopardy. The Tenth Circuit reversed the grant of habeas relief.
Gipson had been tried for burglary. Because he had previously been convicted of two or more felonies, he was subject to Oklahoma’s habitual offender provision of a minimum term of 20 years. Gipson admitted to the charge and the jury had to decide his sentence. The prosecutor informed the jury of six prior felony convictions. In closing argument, the prosecutor stated that Gipson has a propensity for recidivism and mistakenly calculated 10 years for each of seven sentences. The district court, in instructing the jury, clarified that Gipson had six prior convictions. The jury recommended 70 years imprisonment. On appeal, Gipson argued that his sentence was excessive. The OCCA affirmed the sentence and the federal district court granted habeas relief.
HELD: (1) The AEDPA standard of review applies. If the state court did not decide a claim on the merits, the court will decide the issue de novo, if the claim is not otherwise barred. The OCCA upheld Gipson’s sentence, and this court considered it an adjudication on the merits even though the reasoning was not expressly stated. This court will uphold a state court’s summary decision unless independent review of the record and the law persuades the court that the result contravenes or unreasonably applies clearly established federal law. The independent review does not constitute a de novo analysis of Gipson’s claims.
(2) The standard in reviewing improper prosecutorial remarks is whether the remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process. But if the challenged statements effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was rendered fundamentally unfair, but rather only that the violation may not be deemed harmless beyond a reasonable doubt. The circuit did not decide that question because it could not conclude that the OCCA’s decision was contrary to clearly established law.
(3) The double jeopardy clause prohibits imposition of multiple punishments for the same offense. The court deferred to the OCCA’s decision. There is no Supreme Court precedent precisely addressing prosecutorial misconduct in the context of recidivism statutes. But the Supreme Court has held that enhanced punishment for recidivist conduct does not violate the Double Jeopardy Clause.
Supervised Release - Revocation, Rehabilitation, Policy Statements
Plain Error- Unless District Court Decides Issue Sua Sponte
United States v. Tsosie, 03-2209 (August 2, 2004)
(Stephen P. McCue, FPD, Albuquerque, NM)
Tsosie challenges the district court’s decision to revoke his term of supervised release and to require him to serve 18 months imprisonment. Tsosie claims the district court erroneously based the length of his prison sentence solely on his need for rehabilitation, and that the sentence was neither reasoned nor reasonable.
Tsosie pleaded guilty to assault resulting in serious bodily injury and was sentenced to a term of imprisonment followed by three years of supervised release. Among the conditions of supervised release were that he refrain from using illegal drugs, excessive use of alcohol, and that he not commit any federal, state, or local crime. Tsosie violated conditions of release when he was arrested for fighting with his wife after drinking alcohol, and later when he was arrested for aggravated driving under the influence of alcohol.
At a revocation hearing, the district court stated it was contemplating sentencing Tsosie above the 3-to-9 month range indicated by the guidelines, to allow him to participate in the 500-hour substance abuse treatment program. Tsosie stated he would not participate in that voluntary program, but would participate in a 30-day in-patient treatment program. The district court found that the 30-day program was insufficient, and sentenced him to 18 months imprisonment with a strong recommendation that he be enrolled in the Bureau of Prison’s treatment program.
HELD: (1) Tsosie failed to raise the rehabilitation issue below and generally such failure results in review for plain error only. But when a district court sua sponte raises and resolves an issue of law on the merits, the appellant may challenge that ruling on appeal on the ground addressed by the district court even if he failed to raise the issue in district court. The circuit agreed that the district court directly decided an issue of law, and reviewed de novo the decision to impose an enlarged sentence upon revocation for the sole purpose of rehabilitation.
(2) Tsosie claims that the court is prohibited from using rehabilitation
as a significant factor in deciding the length of a prison sentence after a revocation of supervised release, citing 28 U.S.C. § 994(k) and 18 U.S.C. § 3582(a). Under these statutes, it is inappropriate for the district court to consider rehabilitation of the defendant as the sole purpose for imprisonment. But the district court may give weight to rehabilitative needs when revoking a term of supervised release. The distinction between factors appropriate for determining an initial term of imprisonment and those appropriate for sentencing upon revocation of supervised release is based on the statute specifically relevant to supervised release.
(3) When determining the imposition and length of a supervised release term, a court is required, pursuant to 18 U.S.C. § 3583(c), to look to the factors in various subsections of § 3553(a). No matter which alternative under § 3583(e) is chosen, the statute requires the court to consider the § 3553(a) factors before deciding an appropriate course of action with regard to a particular defendant.
(4) Congress intended the limitations of § 3582(a) and § 994(k) to apply only when a court is initially imposing a sentence to a term of imprisonment for crime committed. The cautionary tone against imposing a term of imprisonment solely for rehabilitative purposes in those statutes is not present in the statutes governing supervised release or the revocation thereof.
(5) The rationale for allowing courts to consider rehabilitation when incarcerating a defendant upon violation of supervised release is compelling, because the judge is merely altering the location of the supervised release from outside prison to inside prison. The court is not imposing a term of imprisonment after revocation, but rather converting a term of supervised release to one in which the defendant will serve in prison all or part of that term. The term of supervised release is a separate part of the defendant’s sentence, not the end of the term of imprisonment.
(6) Courts should avoid statutory interpretations that render provisions superfluous.
(7) The court reviews de novo legal questions regarding the application of the guidelines, giving due deference to the district court’s application of the guidelines to the facts. The range of imprisonment applicable upon revocation is set forth in §7B1.4(a) of the sentencing guidelines. Section 7B1.4 is not a guideline per se, but a policy statement. Policy statements are advisory rather than mandatory. Still, they are to be considered. If the district court imposes a sentence in excess of that recommended in chapter 7, the court will not reverse if it can be determined from the record to have been reasoned and reasonable. There can be no dispute here that the district court’s decision was reasoned. The court articulated its legal justification. The fact that Tsosie had adamantly stated his intention not to participate in the voluntary 500-hour rehabilitation program does not render the decision plainly unreasonable.
Sufficient Evidence
Conspiracy - Elements, Knowledge Inferred by High Financial Value of Drugs in Car
Possession -Constructive, Joint Occupancy
Admission of Evidence - Discretion, Hearsay, Harmless Error
Mistrial - Review Standard
Prosecutorial Misconduct - Harmless Error
United States v. Pulido-Jacobo and Pulido-Pedrosa, 03-8050 and 03-8053 (August 5, 2004) (James H. Barrett, FPD, Cheyenne, Wyoming for Pulido-Jacobo)
A jury found Jacobo and Pedrosa guilty of possession with intent to distribute and conspiracy to possess with intent to distribute methamphetamine.
HELD: (1) The court reviews a challenge to the sufficiency of the evidence de novo, viewing all evidence and drawing all reasonable inferences in the light most favorable to the government.
(2) To obtain a conviction for conspiracy, the government must prove an agreement, the defendant knew the essential objective, defendant knowingly and voluntarily took part in the conspiracy, and the co-conspirators were interdependent. To prove an agreement, the government need not offer direct proof of an express agreement, but instead, the agreement may be informal and inferred from circumstantial evidence. The government must prove the alleged conspirator had a general awareness of both the scope and objective of the enterprise. It is permissible to infer that the driver of a vehicle has knowledge of the contraband within it. The methamphetamine had a high financial value and, from that, a rational jury could conclude it would not likely be placed in a car without the knowledge of its occupants. Interdependence exists where each co-conspirator’s actions constitute essential and integral steps toward the realization of a common, illicit goal.
(3) To prove a charge of possession with intent to distribute, the government must show the defendant possessed the controlled substance, knew that he had it, and possessed it with intent to distribute it. Possession may be actual or constructive. To prove constructive possession where there is joint occupancy, the government must present direct or circumstantial evidence to show some connection or nexus individually linking the appellants to the contraband.
(4) Evidentiary rulings are committed to the discretion of the trial court and reviewed for abuse of discretion. Review is even more deferential where the evidentiary ruling concerns admissibility of what is claimed to be hearsay evidence. The court also determines whether any error is harmless. A statement is not hearsay if it is offered against a party and is a statement about which the party has manifested an adoption or belief in its truth. Jacobo manifested a belief in the truth of the questioned receipt.
(5) When evaluating a motion for mistrial, a district court determines whether an error has occurred, and if so, whether the error impaired the defendant’s right to a fair and impartial trial. The court reviews the refusal to grant a mistrial for an abuse of discretion.
(6) An allegation of prosecutorial misconduct is a mixed question of law and fact reviewed de novo. The court determines whether the conduct was in fact improper, and if so whether the error was harmless beyond a reasonable doubt. The government bears the burden to show harmlessness. The court did not decide whether the allegations represent prosecutorial misconduct, because it was satisfied that any error was harmless. The possible error from the government’s examination consisted of three lines of trial transcript and, if error, was harmless.
Restitution - Apprendi
Posse Comitatus Act
Motion to Dismiss - Review Standard
Admission of Evidence - Discretion, Rule 404(b)
Exculpatory Evidence
Witnesses - Compulsory Process, Testimony of a Prosecutor
Acceptance of Responsibility
Downward Departure
Appellate Review - Claim Must be Adequately Developed to be Considered
United States v. Wooten, 03-6185 (August 10, 2004)
Wooten was convicted of assault and kidnaping, and was sentenced to 84 months imprisonment and ordered to pay restitution.
HELD: (1) Insofar as the restitution order is concerned, Apprendi does not apply because the order did not exceed any prescribed statutory maximum.
(2) Wooten argues the district court erred in denying his motion to dismiss based on the Posse Comitatus Act. The court reviews the grant or denial of a motion to dismiss for abuse of discretion. But where the dismissal involves issues of statutory interpretation, the court reviews the district court’s decision de novo. The Posse Comitatus Act was enacted toward the end of the Reconstruction era after the Civil War, to limit the use of the federal army to aid civil authorities in the enforcement of civilian laws. There is no dispute that the United States Attorney for the Western District of Oklahoma willfully used Captain Joshua Norris, an active duty member of the Army and Staff Judge Advocate, to assist in executing the laws of the United States. The question is whether Captain Norris’ appointment and participation fell within the scope of the PCA’s express exception (“except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” 18 U.S.C. § 1385). Even if the court assumes that the Captain’s appointment and participation violated the PCA, the question is what relief Mr. Wooten was entitled to and the answer is none. Wooten has not established that any deficiencies in the appointment deprived the district court of jurisdiction over his case or non-jurisdictional grounds for dismissal.
(3) The district court allowed evidence of Wooten’s history of violence toward Ms. Wooten to be admitted under Rule 404(b). Review of the admission of evidence is for abuse of discretion. To establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence that was favorable to the accused and was material to the defense. Absent a Brady or Sixth Amendment violation, the manner in which the district court handled the admission of evidence was not an abuse of discretion. Evidence concerning a series of incidents between Wooten and Ms. Wooten were relevant to his intent and her lack of consent with regard to the kidnaping charge. This evidence was admitted for a proper purpose under Rule 404(b).
(4) The Sixth Amendment guarantees a criminal defendant compulsory process for obtaining witnesses in his favor. Restrictions on a defendant’s ability to present witnesses are permitted. The government has a substantial interest in not allowing prosecutors to testify, because doing so generally requires disqualification of the prosecutor. The district court may not allow the defendant to call the prosecutor as a witness if it does not appear the prosecutor possess information vital to the defense.
(5) The Equal Protection claim would not be considered since it was adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.
(6) The court reviews the district court’s legal interpretation of the sentencing guidelines de novo. Whether the facts of the case warrant an acceptance of responsibility reduction is a question of fact reviewed under the clearly erroneous standard. The court’s determination that Mr. Wooten was not entitled to this decrease in offense level was not clearly erroneous. While putting the government to its proof at trial does not automatically preclude a defendant from this reduction, the reduction should be granted only in rare cases in such circumstances.
(9) This court does not have jurisdiction to review a district court’s discretionary refusal to depart from the sentencing guidelines on the ground that a specific circumstance does not warrant a departure. The court has jurisdiction only when the district court judge concluded that he or she did not have authority to depart from the sentencing guidelines. The district court’s statement that it lacked authority to grant the requested downward departure must be unambiguous.
Motion to Vacate Sentence (28 U.S.C. § 2255) - Review Standard
Child Pornography - Images of Virtual as Distinguished from Actual Children, Free Speech Coalition
Evidentiary Hearing
Retroactivity
United States v. Cervini, 03-6144 (August 11, 2004)
Cervini appeals from the denial of his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. He had been convicted of shipping child pornography and possession of child pornography. On direct appeal, the circuit affirmed. Following the appeal, the Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, which invalidated §§ 2256(8)(B) and (D) of the Child Pornography Prevention Act (CPPA). These provisions included a definition of child pornographic images created without the use of actual children. Cervini filed a § 2255 action seeking to have his conviction vacated on the basis that Free Speech Coalition should be applied retroactively and that his guilty plea was unknowing and involuntary. The district court refused to reach the merits of the claims, finding that Cervini had not overcome procedural bar.
HELD: (1) When reviewing a district court’s denial of a § 2255 motion, the court reviews the district court’s legal conclusions de novo. The court reviews the district court’s findings of fact for clear error. A § 2255 motion is not a substitute for an appeal. Failure to raise an issue imposes procedural bar to habeas review, unless the defendant can show cause and prejudice to overcome procedural bar. Both the Supreme Court and this court have recognized that incarceration of one actually innocent constitutes a grave miscarriage of justice. It is also well established that, if a defendant can introduce new evidence showing that constitutional error probably resulted in the conviction of one who is actually innocent, the court may reach the merits of an otherwise defaulted claim. Cervini claims he is actually innocent of the crime because, in light of Free Speech Coalition, no reasonable juror would have found him guilty of possession of actual child pornography, as it would have been impossible to tell whether the images he was convicted of possessing were of actual or virtual child pornography. Whether an evidentiary hearing is appropriate, the Supreme Court decision in Schlup instructs that a district court must assess the probative force of the newly presented evidence in connection with the evidence of guilt induced at trial.
(2) While a statement in a plea colloquy might not be conclusive, Cervini’s admission in the plea agreement is quite specific that actual minors were used. In the face of this admission, it simply is not probable that no reasonable juror would find him guilty beyond a reasonable doubt, no matter what an expert might now say.
(3) The court declined to reach the merits of whether Free Speech Coalition is retroactively applicable to cases on collateral attack.
Guideline Interpretation -Review Standard, §2D1.1, Firearm Enhancement Is Not Inconsistent with the Safety Valve
United States v. Zavalza-Rodriguez, 03-2247 (August 17, 2004)
(Margaret A. Katze, FPD, Albuquerque, New Mexico)
HELD: (1) The court reviews de novo the district court’s interpretation of the scope and meaning of sentencing guidelines. Under § 2D1.1, the government has the initial burden of proving possession of a weapon by a preponderance, and once the government satisfies this burden, the defendant may overcome it only if he establishes that it is clearly improbable the weapon was connected with the offense. Zavalza stipulated in his plea agreement to the two-level enhancement for possession of a firearm. He entered into the agreement because he believed he would be unable to meet the “clearly improbable” standard, so he admitted he constructively possessed the firearm for purposes of § 2D1.1(b)(1), although he maintains that he did not actually possess it.
(2) Under § 5C1.2, a court shall impose a sentence without regard to a statutory minimum if the defendant meets five criteria. The defendant bears the burden of satisfying the five criteria by a preponderance. Zavalza met his burden with reference to four of the five criteria. The sole issue was whether the district court erred in finding that he satisfied the criterion that he did not use violence or credible threats of violence, or possess a firearm or other dangerous weapon, in connection with the offense. The government argues there is an inherent logical inconsistency in finding both that the government met its burden of proving possession for purposes of § 2D1.1(b)(1), and also finding that the defendant met his burden of proving non-possession for purposes of § 5C1.2(a)(2). Like other circuits, the Tenth Circuit has never required such consistency as a matter of form. Precedent focuses on the defendant’s own conduct for purposes of evaluating eligibility for the safety valve, and recognizes a distinction between constructive and actual possession. Looking at the statutory language, the term “possess” is used in two different senses in the two different provisions. Section 2D1.1 is written in the passive voice, while § 5C1.2 is written in the active voice. Also there is a difference in the evidentiary standards. The circuit reconciled the legal authorities with the seeming logical inconsistency suggested by the government. The circuit concluded that the sentence enhancement does not foreclose the sentence reduction under § 5C1.2.
Escape (18 U.S.C. § 751) - In Custody, Residence in Halfway House as Condition of Release
Statutory Construction
United States v. Sack, 03-2253 (August 17, 2004)
(Stephen P. McCue, FPD, Albuquerque, New Mexico)
After his arrest for bank robbery, Sack was ordered to reside at a halfway house. He failed to return. He was later indicted for his role in the robbery and for escape. He moved to dismiss the escape charge. This motion was denied. He pleaded guilty to escape, reserving his right to seek review of that order. On appeal, he argues that he was not in custody for purposes of the escape statute, 18 U.S.C. § 751, because he was not in the custody of the Attorney General.
HELD: (1) This involves a question of statutory construction reviewed de novo. The circuit has previously concluded that court-ordered residence at a halfway house constitutes custody for purposes of the sentencing guidelines. But the meaning of custody for sentencing purposes may be different than what is required under § 751. The statute applies to escapees confined or in custody under federal law in the sense that they were held in the custody of the Attorney General, or in custody by an order or process issued under the laws of the United States by a competent court or official. Because Sack was in the custody of the halfway house as a result of an order of the district court, the circuit concluded he was in custody under § 751.
(2) Under § 751, a defendant must be in custody as a result of an arrest for a felony or a misdemeanor. Sack argues that, because he was returned to the halfway house as a result of violating the conditions of his release, he was not in custody based on his arrest for a felony. But the court’s control of Sack’s liberty was premised on his arrest for a felony, accessory-after-the-fact armed bank robbery.
Entrapment by Estoppel - Review Standard, Firearms Dealer not a Government Agent, No Estoppel by State Judge or Police
Firearms (False Statement)- Sufficient Evidence
United States v. Hardridge, 03-3186 (August 17, 2004)
Hardridge appeals his convictions on three counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and two counts of knowingly making a false statement in connection with the purchase of a firearm. He went to trial without a jury and urges the district court erred in rejecting his estoppel defense. The prior felonies that form the basis of all five federal charges are two state convictions for aggravated battery. He testified at the federal trial that he believed his state convictions to be juvenile offenses and he had been misled by various statements and actions by a firearms dealer, a state judge, and local law enforcement officers.
HELD: (1) Determining whether the government is estopped from a prosecution is generally a mixed issue of law and fact. The court reviews such mixed questions under the clearly erroneous or de novo standard, depending on whether the mixed question involves primarily a factual inquiry or conciliation of legal principles. Here the circuit assumed the defendant’s version of the facts, and reviewed the issues de novo as a matter of law.
(2) A claim of entrapment by estoppel is at heart a due process challenge. To convict a citizen following active misleading would be to dispense with the basic requirement that citizens receive fair warning of what actions are criminal.
(3) This circuit has not yet decided whether a licensed firearms dealer is a government agent for purposes of establishing an entrapment-by-estoppel defense. The Ninth Circuit in United States v. Tallmadge held that a firearms dealer could make representations establishing entrapment-by-estoppel. Other circuits have rejected Tallmadge. The circuit joined the majority view, though it expressed sympathy for a person, prosecuted for an act, after being assured by a licensed firearms dealer that the act is lawful. But the alleged unfairness arises out of private conduct and not from government action. It is not the government that has denied due process. Licensed firearm dealers are not government agents for the purposes of an entrapment-by-estoppel defense.
(4) When Hardridge was sentenced in state court in 1995, the trial judge said that he would be on post-release supervision for 24 months, and that he would be prohibited from carrying a firearm upon release. Hardridge claims he was misled into believing that he could possess a gun after the completion of the 24 months. Again, there is a conflict in decisions about whether a state judge’s affirmative representation may constitute estoppel of the federal government. The circuit held that entrapment-by-estoppel cannot be predicated on the statement by the state judge, because Hardridge could not have reasonably understood that statement as suggesting anything about the application of federal firearms law after his post-release supervision.
(5) Finally, Hardridge urges that the Kansas City Police Department misled him twice, first in providing him with a criminal history record check that omitted his 1995 conviction, supporting his belief that the prior conviction was a juvenile record, and second, when it recovered his firearm from an abandoned vehicle and returned it to him after completing a background check. The problem is that the Kansas City Police Department is not a government official or agency responsible for interpreting, administering, or enforcing the law defining the offense, as entrapment-by-estoppel requires.
(6) Under 18 U.S.C. § 922(a)(6), one may not knowingly make a false or fictitious oral or written statement in filling out ATF Form 4473. Essentially, Hardridge challenges the sufficiency of the evidence against him. But the evidence was sufficient to show that he knew he had been convicted of a felony when he completed the ATF forms.
Motion to Suppress - Review Standard
Consent to Search - Scope of Consent
Privacy Act - Amtrak Not Subject to This Act
United States v. Jackson, 03-2260 (August 18, 2004)
(Thomas B. Jameson, FPD, Albuquerque, New Mexico)
Jackson was charged with possession with intent to distribute 500 or more grams of cocaine. He moved to suppress evidence discovered during an encounter with a DEA agent. The motion was denied. He entered a conditional plea.
HELD: (1) In reviewing the denial of a motion to suppress, the court views the evidence in the light most favorable to the government and accepts the district court’s findings of fact unless clearly erroneous. The conclusion that a search is within the boundaries of consent is a fact finding reviewed for clear error, and the ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo.
(2) A warrant is not required when a defendant consents to a search. When law enforcement officers rely upon consent, the scope of consent determines the scope of the search. Jackson consented to the search of his carry-on bag, but argues that the search of the baby powder container in the train violated his Fourth Amendment rights. The circuit held that the search of the container was within the scope of the consent to search the bag. The search of a container does not exceed the scope of consent when, under the circumstances of a particular case, it was objectively reasonable for the officer to believe that the scope of the consent permitted him to open the container. A defendant’s failure to limit the scope of a general authorization to search, and failure to object when the search exceeds what he later claims was a more limited consent, is an indication the search was within the scope of consent. Removing the lid of the baby powder container did not destroy or render the container useless, so that it was not necessary for the officer to obtain explicit authorization.
(3) A warrantless search of a legally seized container is invalid unless it
falls within one of the narrow and well-delineated exceptions to the warrant requirement. A warrantless search can be conducted if law enforcement agents see, within plain view, the contents of a container and it is apparent that such contents are contraband. The plain view exception applies to the search which took place in the DEA office. When the agent first searched the container pursuant to consent, he saw a white powdery substance inside a baggie hidden within the baby powder container. Agent Perry thought it was very unlikely that the baggie contained something other than narcotics. He knew that Jackson had paid for his coach ticket in cash, and was traveling from California to Ohio. and that such travel arrangements are consistent with those of drug smugglers. Agent Perry also knew that drugs are sometimes smuggled inside baby powder containers. It was a foregone conclusion that the baby powder container held drugs. The plaintiff’s plain view exception applies.
(4) The circuit adopted the Fifth Circuit’s decision that Amtrak is not subject to the Privacy Act.
Motion to Suppress - Review Standard
Warrant - Particularity, Reasonableness, Time of Execution, Unattached Affidavit Cannot Cure
United States v. Katoa, 03-4202 (August 17, 2004)
(Scott Keith Wilson, FPD, Salt Lake City, Utah)
Katoa entered a conditional plea to one count of possession of methamphetamine with intent to distribute, and reserved his right to appeal the denial of his motion to suppress evidence.
HELD: (1) When reviewing the denial of a motion to suppress, the court views the evidence in the light most favorable to the government, accepts the district court’s findings of fact unless clearly erroneous, and reviews de novo the ultimate determination of reasonableness under the Fourth Amendment.
(2) Although state officials conducted the search in this case, the warrant must comport with the Fourth Amendment’s reasonableness requirement. The court recognizes that a nighttime search is particularly intrusive.
(3) The warrant contained an express daytime limitation. The nighttime search was telephonically authorized during the course of the search. The detective’s affidavit, detailing the need for a nighttime search, was not attached or incorporated by reference to the warrant. Katoa argues that this resulted in a search that violated his Fourth Amendment rights. In Groh, the Supreme Court determined that the deficiencies of the warrant could not be salvaged, despite the existence of probable cause and the sufficiently particular warrant application. The Court’s reasoning was based on the particularity requirement of the Fourth Amendment. The circuit noted that the Fourth Amendment requires search warrants to particularly describe the place to be searched and the persons within to be seized.
(4) But there is no similar requirement that a warrant indicate the
appropriate time of day for execution. Pursuant to case law, that requirement falls within the more general “reasonableness” standard. The district court found that the judge made clear by telephone that he intended to authorize nighttime execution, and instructed the detective to amend the warrant to so reflect. The judge’s telephonic clarification cured any problem and made the nighttime search reasonable. To the extent Groh can be read to require written assurance from the judge to cure a facial deficiency, that requirement was satisfied when the issuing judge authorized a change over the telephone and signed that change upon return of the warrant. The judge’s telephonic authorization also distinguishes the case from other cases Katoa relies on in which officers unconstitutionally executed daytime only warrants at night without such authorization from a judge. The nighttime execution of the warrant was reasonable. The circuit’s holding was narrow: when the face of a warrant contains a drafting defect or omission regarding a subject not specifically named in the Constitution, the warrant is made valid if the issuing judge authorizes correction of the defect or omission via telephone during the search and subsequently confirms that authorization in writing.
Habeas Corpus (28 U.S.C. § 2254)
Ineffective Assistance of Counsel
Sallahdin v. Mullin, 03-6108 (August 24, 2004)
The district court granted conditional habeas relief in the form of a new sentencing hearing to Sallahdin, an Oklahoma state prisoner convicted of first degree murder and sentenced to death. The state appealed and the circuit reversed. In a first decision by the Tenth Circuit, the court affirmed the denial of all his habeas issues, but found troubling his assertion that trial counsel was ineffective for failing to present second stage mitigation on the effects of his steroid use on his behavior at the time of the crime. The circuit reversed and remanded for an evidentiary hearing.
On remand, the district court conducted a hearing. Sallahdin relied exclusively on the testimony of counsel whom he claimed had been ineffective.
The state presented evidence to counter the theory that counsel was negligent. Sallahdin presented rebuttal testimony. The district court granted conditional habeas relief. The court relied on counsel’s testimony that he had independent evidence that Sallahdin had taken steroids near the time of the crime, and that counsel had no recollection of being informed by the police that his client had stopped his steroid use before the murder. The court found no discernable explanation for counsel’s failure to call Dr. Pope to testify regarding this matter.
HELD: (1) Under Strickland, a criminal defendant must show deficient performance and prejudice. Review of counsel’s performance is highly deferential. The burden was on Sallahdin.
(2) The circuit agreed that there was no evidence that the trial court prohibited counsel from introducing this evidence. The circuit also agreed there was no evidence indicating time constraints that would have prevented Dr. Pope from appearing. Nor was there any evidence of budgetary constraints. The only explanations could either be a strategic decision not to present the evidence or that counsel forgot to do so. The district court found that trial counsel simply forgot. In doing so, the district court did not hold Sallahdin to his burden of proof. Counsel could not recall what had happened. The district court also discounted the testimony of the two prosecutors who testified that counsel was made aware of a memo related to steroid use, and that counsel had told the prosecutor he was not going to use that evidence. There is no indication that the district court took into account state trial and post conviction proceedings.
(3) In addition, the record on appeal supplies several reasons why it would have been constitutionally reasonable for counsel not to introduce this evidence. First, the jury could have viewed steroid use in a negative light. Second, the jury may not have found Sallahdin credible. Third, the prosecution could have rebutted this with statements by Sallahdin that he had not used steroids in close proximity to the murders.
(Judge Ebel dissented).