Grand Jury - Testimony by Prosecutor, Questions, Challenge to Indictment;
Confession - Voluntariness, Reopen Suppression Hearing;
Ineffective Assistance of Counsel - Claims Ordinarily Should be Raised on Collateral Review;
Identification - Impermissibly Suggestive Photo Array, In Court Identification;
Severance;
Sufficient Evidence - Review Standard;
Interstate Commerce - Hobbs Act, Instructions;
Use or Carry Firearm (§ 924(c)) - Display Weapon;
Firearm Enhancement - Air Guns as Dangerous Weapon;
Obstruction of Justice;
Related Prior Convictions
United States v. Wiseman, 97-2301 (April 5, 1999)
Wiseman was convicted of a series of robberies of grocery stores. He had been indicted jointly with Martin. The cases were severed. Martin entered into a plea agreement. Martin did not testify at Wiseman's trial.
HELD: (1) While it is not proper for a prosecutor to testify before the grand jury, here, the prosecution's remarks about the grocery store robberies affecting interstate commerce were his effort to explain the somewhat arcane bases for federal jurisdiction under the Hobbs Act.
(2) It was not improper for the grand jury to ask what happened to all the money, and to be told by the agent that Wiseman and Martin lived in hotels, bought crack and went to strip clubs. The grand jury's question was prompted by the fact that when the two were arrested, much less money than what had been taken from the robberies was in their possession.
(3) If errors are procedural violations affecting only the probable cause charging decision by the grand jury, the defendant must have successfully challenged the indictment before the petit jury rendered a guilty verdict. The petit jury's guilty verdict means that guilt was found beyond a reasonable doubt.
(4) The ultimate question of the voluntariness of a confession is one of law reviewed de novo, while underlying fact findings are accepted unless clearly erroneous.
(5) Ineffective assistance of counsel claims should be brought in collateral proceedings and not on direct appeal.
(6) The district court was under no obligation to re-open the suppression hearing based on substitution of counsel.
(7) To determine the constitutionality of a photo array, the court determines whether the array was impermissibly suggestive, and if so whether the identifications were nonetheless reliable. Factors include the size of the array, manner of presentation, and details of photographs themselves. The choice of the particular photo of the defendant was unfortunate. The overall effect is that the defendant stands out prominently from others in the array and looked "rougher." The chain around his neck was of a sign with identifying information, and an ordinary observer would attach significance to the chain. The court concluded the array was unduly suggestive, and the district court's finding of fact to the contrary is clearly erroneous.
(8) The factors to be considered in evaluating the likelihood of misidentification include opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, accuracy of the witness' prior description, level of certainty, and length of time between the crime and confrontation. Most of the witnesses viewed the robbers under favorable conditions. The witnesses' descriptions were fairly accurate. The three months between the crimes and presentation of the photos was not extremely long. The pretrial identifications were not so impermissibly tainted by the suggestiveness of the photo array.
(9) Because the pretrial identification procedures were not so suggestive as to undermine the reliability of the identifications, the court rejected the attack on the in-court identification.
(10) The decision whether to sever counts of an indictment for separate trial is a matter committed to the sound discretion of the trial court. Counts one, two, five and six involved robberies, where there was a lack of identification of the defendant as the perpetrator. He sought severance of counts three and four because of the stronger evidence. But the defendant made inculpatory statements as to the other robberies. That the government's evidence was stronger on some counts than others does not mandate severance.
(11) The confession covered five of six robberies. The court reviews sufficiency of the evidence de novo. It is not necessary for corroborating evidence to establish independently each element of the crime. The evidence corroborated the confession as to participation in five robberies, and commission of the sixth robbery was established by sufficient evidence.
(12) The circuit addressed whether the jurisdictional element of effect on interstate commerce was established. Wiseman conceded that only a de minimus effect is necessary. But he urged that the evidence as to all but the first robbery was insufficient, because the witnesses were not asked specifically whether the stolen money would in fact have been used to purchase goods from interstate sources. The evidence was sufficient where the government introduced evidence that the store in question purchased substantial amounts of goods in interstate commerce for resale, and sales revenues were used in part to replenish those supplies. The amounts taken in the robberies, ranging from $2,500 to $20,000, were significant.
(13) Wiseman urges the jury was not properly instructed that the government had to prove the stolen money would have been used to purchase more goods in interstate commerce. Where two instructions are in direct conflict with each other, the giving of such instruction is generally said to be prejudicial. Only a potential effect on commerce is required to satisfy the interstate commerce element.
(14) Section 924(c) makes it a crime to use or carry a firearm during and in relation to a crime of violence or drug trafficking crime. The indictment charged aider and abettor liability. The government argued that although Martin, the co-defendant, held the gun, Wiseman aided and abetted him in that. Martin's display of the weapon comes within the meaning of use as defined in Bailey.
(15) The court reviews questions of law regarding the guidelines de novo. If a firearm is used in connection with a robbery there is a five-level increase. If an air gun is a dangerous weapon, rather than a firearm, it calls for only a three-level increase. The district court found that a firearm had been used. The district judge had conflicting evidence before him. The court could not conclude the finding was clearly erroneous.
(16) The court applied a two level increase for obstruction of justice based on a defendant's attempt to escape. There was no basis for reversing this aspect of sentencing.
(17) The district court added three points to defendant's criminal history score for conviction in state court for commission of an armed robbery a short time after the six New Mexico robberies and just prior to the defendant's arrest. The court added two points for his conviction for aiding and abetting a federal prisoner to escape, based on the escape by Martin and Wiseman just prior to beginning this string of robberies in New Mexico. Wiseman urges these should be related convictions so that only one point would have been added instead of five. There was no intervening arrest here. Whether offenses are related is a factual determination reviewed for clear error, but the court reviews application of the guidelines, including the meaning of the term "related," de novo. The question of related cases applies to the relationship between prior sentences, and not the relationship between prior sentences and the present offense. To determine whether prior convictions arose from a common scheme or plan, the focus is on factual commonality such as temporal and geographic proximity and common victims. The escape in Idaho and robbery in Arkansas were separated by several months and over a 1000 miles and there were no common victims. There is no evidence that Wiseman escaped, and at that time was planning a series of grocery store robberies. As to the two other convictions, the term "prior sentence" includes any sentence previously imposed for conduct not part of the instant offense. The two convictions were not treated as part of the instant offenses, either as relevant conduct or in any other way.
Arrest Warrant - Entry Into Residence
Valdez v. McPheters, 97-4057 (April 5, 1999)
Valdez brought this civil action alleging the police violated her constitutional rights against unreasonable search and seizure. Officers told her there was an outstanding felony warrant for the arrest of her son. There was a dispute as to whether she consented to entry.
HELD: Under Payton v. New York, police officers entering a residence pursuant to an arrest warrant must demonstrate a reasonable belief that the arrestee lived in the residence, and a reasonable belief that the arrestee could be found within the residence at the time of entry. There is no requirement of actual knowledge of the suspect's true residence.
Right of Confrontation - Cross Examinations;
Witnesses - Confrontation;
Motion For Judgment of Acquittal - Review Standard, Venue;
Venue - Proof by Preponderance, Instructions, Requirement of Request for Instruction;
Motion For New Trial - Discretion Standard, Jury Exposure to Extraneous Material;
Jury - Extraneous Material, Inquiry
United States v. Byrne, 98-2027 (April 6, 1999)
Byrne was convicted of using telecommunication devices in interstate commerce to entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b), and traveling in interstate commerce for the purpose of engaging in sexual acts with a minor in violation of § 2423(b). He was sentenced to 21 months imprisonment.
HELD: (1) The court reviews de novo whether a defendant's Sixth Amendment confrontation rights were violated by cross examination restrictions and whether such violation was harmless. The district court refused to allow questioning regarding an unrelated encounter the witness had with another man and the witness' corresponding arrest on runaway charges. The district court found such testimony substantially more prejudicial than probative. The court concluded the cross-examination restrictions fell within the bounds permitted by the Sixth Amendment.
(2) The court reviews the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government to determine if the jury could have found the defendant guilty of the essential elements of the crime beyond a reasonable doubt. When the motion raises a question of venue, the analysis is somewhat altered because, unlike other substantive elements of the offense charged, the government need only prove venue by a preponderance. The record is replete with evidence that establishes proper venue in the District of New Mexico. Although venue is a question of fact ordinarily to be decided by the jury, failure to instruct on venue does not necessarily constitute reversible error. Failure to instruct on venue when requested is reversible error, unless it is beyond a reasonable doubt that the guilty verdict necessarily incorporates a finding of proper venue. The defendant did not make a request for a specific instruction on venue. Because the defendant did not object to the lack of a specific instruction, review is for plain error.
(3) The court reviews the district court's decision to deny a motion for new trial under an abuse of discretion standard. In determining whether the jury's exposure to extraneous material during deliberation warrants a new trial, the proper inquiry is whether there was the slightest possibility that such extraneous material affected the verdict. The district court conducted an investigation regarding the extraneous material, including questioning the jury under oath. This investigation revealed that a juror discovered several computer print-outs, containing profiles of minors who were engaged in a homosexual relationship, inside an Atlas admitted into evidence. After discovering the material, the juror promptly sent it out of the jury room without reading it. Each juror testified that he or she did not read the material. Unlike a photograph, tape, object or enactment, a juror must have read the printed information to comprehend its prejudicial content. Under the circumstances here there is not the slightest possibility that the material affected the verdict, and therefore there was no abuse of discretion in the denial of the motion for new trial.
Motion to Vacate (28 U.S.C. § 2255) - Certificate of Appealability For Constitutional
Claims;
Procedural Bar;
Ineffective Assistance of Counsel;
Sentencing - Factual Inaccuracies in PSR
United States v. Gordon, 98-4054 (April 7, 1999)
(Vicki Mandell-King, FPD, Denver, Colorado)
Gordon appealed the denial of his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The court had to decide whether a certificate of appealability should issue for claims regarding violations of Rule 32, F.R.Cr.P.
HELD: (1) In order for a COA to issue, the defendant must make a substantial showing of the denial of a constitutional right under 28 U.S.C. § 2253(c)(2). Defendant's claims are not constitutional violations but based on Rule 32. He argued the COA should also issue for violations of federal law. Section 2255 allows the filing in district court of a motion to vacate sentence based on violations of federal law. The two provisions address different steps in the judicial process. The court also disagreed that violations of federal law may constitute fundamental defects which compel issuance of a COA.
(2) In his § 2255 motion, the defendant also claimed his due process rights were violated because he was sentenced based on incorrect information and denied an evidentiary hearing, and because he had ineffective assistance of counsel. The district court erroneously determined that these claims were procedurally barred. The circuit granted a COA for these constitutional claims. The government conceded the district court erred in finding these claims procedurally barred. In defendant's direct appeal, he claimed his guilty plea was involuntary because of original counsel's shortcomings, and he did not raise a due process claim. Gordon's § 2255 ineffective counsel claim involves the conduct of substitute counsel and not original counsel. In addition, the factual predicate for the claims differ. In the § 2255 motion, Gordon alleged that substitute counsel was ineffective for not disclosing the PSR to him, and by failing to bring to the attention of the sentencing court factual inaccuracies in the PSR, which were relevant to determinations of relevant conduct and acceptance of responsibility. Substitute counsel, who handled the direct appeal, appropriately did not raise claims of his own ineffectiveness as a ground for appeal. In the appeal, Gordon had challenged original counsel's failure to obtain the PSR, and not failure to provide it to the defendant. The direct appeal did not address allegations that counsel was ineffective in failing to provide the PSR to him. Gordon urges that if he had been privy to the PSR he could have informed counsel of factual inaccuracies which affected relevant conduct and acceptance of responsibility. In the direct appeal, this court did not consider whether counsel was ineffective in failing to challenge factual inaccuracies. The court remanded to the district court for consideration of the merits of those claims.
Summary Judgment;
Civil Rights (42 U.S.C. § 1983) - Inmate Safety, Deliberate Indifference, Medical Needs
Lopez v. Lemaster, 98-6203 (April 9, 1999)
This is a civil rights action brought pursuant to 42 U.S.C. § 1983.
HELD: (1) Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The court reviews the grant of summary judgment de novo.
(2) Neither prison officials nor municipalities can absolutely guarantee the safety of prisoners. They are responsible for taking reasonable measures to insure the safety of inmates. Appellant argues he was injured because his jailor placed him back in the general population cell after he had been threatened by fellow inmates. This claim challenges an episodic act or omission of a jail official, rather than a condition, practice or restriction at the jail. He also challenges his jailer's failure to rescue him once the assaults began, focusing on constitutionally inadequate conditions such as understaffing and lack of monitoring equipment. He claimed the jailer's acts and omissions were the result of Sheriff Lemaster's failure to provide adequate training and supervision of jail personnel. It is not enough to show general deficiencies in the county's training program for jailers. To survive summary judgment on an individual claim against the sheriff, the appellant must present factual evidence that he was incarcerated under conditions posing a substantial risk of serious harm. Appellant presented sufficient evidence on these points to survive judgment. The standards provided by Oklahoma Department of Health were violated. Violation of these standards pose a substantial risk of harm to prisoners. The sheriff was on notice of the danger. Appellant made a sufficient showing that the county maintains an unconstitutional policy of understaffing its jail and of failing to monitor inmates. The requisite degree of intent must be deliberate indifference to inmate health or safety. Appellant has shown the requisite deliberate indifference.
(3) Prison officials violate the Eighth Amendment, or in this case involving a state facility, the due process clause, when they are deliberately indifferent to an inmate's serious medical needs. Material issues of fact remain concerning how badly appellant was hurt, and therefore he has satisfied his summary judgment burden concerning serious medical needs. The jailer refused to take him to the hospital after the beating, and he was not seen or treated by a doctor. Issues remain about whether the sheriff was aware of facts from which inferences could be drawn that a substantial risk of serious harm existed, and summary judgment was improper.
Habeas Corpus (28 U.S.C. § 2254) - Second or Successive, Permission to File, Dismissing Unexhausted Claims
Tapia v. Lemaster, 99-2023 (April 12, 1999)
(The judgment and order filed March 26 was ordered published)
The question is whether Tapia, a state prisoner, should be granted authorization to file a second § 2254 petition. He filed his first petition in December 1996 after the effective date of the AEDPA, and argued his conviction for aggravated assault was invalid because his counsel was ineffective, and also argued improper jury instructions. The magistrate had held that the ineffectiveness claim had not been exhausted and recommended dismissal without prejudice as a mixed petition. Tapia objected, and requested to go forward with the current petition and that the court only respond to exhausted claims. The magistrate issued an amended recommendation that the exhausted claims be denied. No appeal was taken. Tapia filed a second § 2255 petition in which he raised the claim that had been dismissed for failure to exhaust, as well as additional allegations of ineffective assistance of counsel. The district court sua sponte transferred the matter to the circuit, because the petition was a second application, and authorization from the circuit was necessary.
HELD: (1) Tapia chose to pursue his exhausted claims and to abandon the unexhausted ones. The courts have followed pre-AEDPA cases on abuse of the writ to determine whether a petition is successive. Petitions, which have been dismissed without prejudice for failure to exhaust state remedies, do not count as previous petitions. But where a petitioner chooses to file an amended petition, he runs the risk of having the subsequent petition dismissed as an abuse of the writ. There is no constitutional right to counsel in habeas proceedings, and Tapia's pro se status does not justify reconsideration of the choice he made in his prior habeas matter.
(3) To obtain authorization to file a successive habeas petition, the movant must make a prima facie showing that the grounds set forth are based on either a new rule of constitutional law made retroactive on collateral review by the United States Supreme Court that was previously unavailable, or newly discovered evidence, the factual basis for which could not have been discovered previously through the exercise of due dilligence, and which would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the underlying claims. The claims regarding ineffectiveness of trial counsel were not addressed in the motion filed for authorization, and authorization is denied as to those claims as well.
Motion to Suppress - Review Standard;
Search - Consent, Failure to Advise Free to Leave, Scope of Consent;
Arrest - Probable Cause, No Warrant;
Confidential Informant - Disclose Identity;
Prosecutorial Misconduct;
New Trial - Discretion Standard
United States v. Gordon, 98-2100 (April 5, 1999)
(Peter Schoenburg, Albuquerque, New Mexico)
Gordon was convicted of possession with intent to distribute more than five kilograms of cocaine and was sentenced to 151 months imprisonment.
HELD: (1) In reviewing the district court's denial of a motion to suppress, the court accepts fact findings unless they are clearly erroneous, and considers the evidence in the light most favorable to the government. The ultimate question of whether a search and seizure were reasonable is reviewed de novo. Gordon's voluntary relinquishment of the key to the bags evidenced his consent to search the locked duffel bag. A search does not become non-consensual because an officer fails to advise of the freedom to leave or to identify herself. But these are factors to consider in deciding whether this search was consensual. The officer asked Gordon questions regarding his ticket and identification, travel plans and luggage. Because of the poor quality of a tape recording, a written transcript of the conversation between the officer and Gordon is not entirely complete. The agent asked questions and did not fire orders at Gordon. She showed her badge to him when she approached, and said she was working interdiction. Non-verbal conduct of handing the key to the agent can constitute voluntary consent. 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.
(2) Law enforcement personnel may arrest a person without a warrant if there is probable cause to believe the person committed a crime. The court considers the totality of the circumstances. The agent had probable cause to arrest Gordon. He knew Gordon had purchased a one-way ticket with cash only minutes before the train departed, was traveling under another name, was carrying a large amount of cash, and had in his possession brick shaped, cellophane wrapped packages commonly used to transport narcotics.
(3) A defendant seeking to force disclosure of an informant's identity has the burden of showing that testimony is relevant or essential to the fair determination of defendant's case. The court must balance the public interest in protecting the flow of information against the right of the defendant to prepare his defense. Where it is clear the informant cannot aid the defense, the government's interest in keeping secret the informant's identity must prevail. The informant's role in Gordon's arrest was extremely limited. The court would not require disclosure of an informant's identity based on mere speculation.
(4) The court reviews the district court's denial of a motion for new trial based on prosecutorial misconduct for abuse of discretion. The court determines first if the conduct was improper and then, if there is any improper conduct, whether it warrants reversal. Reversal is necessary only if the improper conduct influences the verdict. The court considers the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a whole. The prosecutor's question on cross-examination of Gordon referencing his four children was improper but did not warrant reversal. This was a single question in a two-day proceeding.
Habeas Corpus (28 U.S.C. § 2254) - AEDPA, COA; Access to Psychiatric Assistance (Ake), Assistance of Investigator or Expert;
Variance - Charge and Evidence;
Incompetence to Stand Trial - Burden of Proof, Procedural or Substantive;
Procedural Bar - Independent and Adequate State Ground
Rogers v. Gibson, 98-6301 (April 12, 1999)
Rogers was convicted of first degree murder and other charges and the jury recommended death. His direct appeal was denied, as was post-conviction relief. He filed a habeas petition which the district court denied.
HELD: (1) The § 2254 petition was filed almost a year after the effective date of the AEDPA and its provisions apply, including for purposes of a COA.
(2) An indigent defendant must have a fair opportunity to present his defense as part of the Sixth and Fourteenth Amendments. When a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a state provide access to a psychiatrist's assistance if the defendant can not otherwise afford one. This applies to both the guilt and penalty phases. The trial court had nothing before it suggesting that sanity at the time of the offense would be a significant factor. Trial counsel informed the court that petitioner instructed him not to raise an insanity defense. In the penalty phase, the state relied upon petitioner's continuing threat to society as one of the aggravating circumstances in the case, but did not demonstrate to the trial court that mental condition would be a significant mitigating factor. In any event, lack of such assistance did not constitute error where the jury's decision to recommend death was based on two additional aggravators that the murder was especially heinous, atrocious and cruel, and that petitioner was previously convicted of a violent felony.
(3) Indigent defendants are entitled to a fair opportunity to present their defense, but are not entitled to all the assistance that wealthier counterparts might require. The court considers the effect on the petitioner's private interest in the accuracy of the trial if the requested assistance is not provided, the burden on the state if assistance is provided, and probable value of additional assistance. Petitioner failed to meet his burden of showing that investigative assistance was necessary, or that the denial of a forensic expert substantially prejudiced his case.
(4) A variance arises when evidence introduced at trial establishes facts different from those in an information. Such variance is not reversible error unless it effected the substantial rights of an accused. The information charged petitioner with one count of first degree rape. The evidence suggested two separate acts of sexual assault, one while the victim was still alive, and one at or after the victim's death. Although the jury instructions do no expressly inform the jury that the crime of rape can be committed only against a living person, the allegations in the information and another instruction adequately informed the jury the victim had to be alive.
(5) Oklahoma law in effect at the time of the competency hearing required criminal defendants to prove their incompetency to stand trial by clear and convincing evidence. However, the Supreme Court has held that Oklahoma's clear and convincing standard in competency hearings violates the right to due process. Therefore the trial court employed an unconstitutional standard in conducting the competency hearing. Petitioner did not raise this in his direct appeal. Mental competency claims may raise both substantive and procedural due process claims. A procedural competency claim may be procedurally barred, but a substantive mental competency claim may not. The court construed the unconstitutional burden of proof claim as procedural due process. Petitioner filed his direct appeal prior to the Supreme Court decision in Cooper. Petitioner first raised the Cooper claim in his application for post-conviction relief. The Oklahoma Court declined to apply Cooper on post-conviction review, and held that all Cooper claims, not raised on direct appeal, are waived on collateral review where the direct appeal is pre-Cooper. The Oklahoma court applied 1995 amendments to Oklahoma's post-conviction procedures, which bar post-conviction relief where the claim was not raised on direct appeal, unless the petitioner can show the issue could not have been raised in a direct appeal. A claim is unavailable on direct appeal if the legal ground supporting it either was not recognized by the court as precedent at the time of direct appeal, or is a new rule of constitutional law given retroactive affect. Applying these new standards, the court concluded that the challenge to the clear and convincing burden of proof could have been raised by Walker in his direct appeal, even though Cooper had not yet been decided. Prior to the 1995 amendments, petitioner would not have been procedurally barred from raising his Cooper claim, as an intervening change in the law for the first time in his post-conviction application. Claims that have been defaulted in state court on an independent and adequate state procedural ground will not be considered on federal habeas review, unless the petitioner can demonstrate cause and prejudice or that failure to consider the claim will result in a fundamental miscarriage of justice. An independent state procedural ground is adequate if it has been strictly or regularly followed and applied even-handedly. The circuit determines whether a procedural rule was firmly established and regularly followed by looking to the time of the asserted procedural default. The circuit concluded that the Cooper claim is not procedurally barred because the 1995 amendments had not yet been enacted in 1993, the time of petitioner's proported default. A defendant cannot be expected to comply with a procedural rule that does not exist at the time of the purported default.
(6) In order to obtain habeas relief on a procedural competency claim, petitioner must show the trial court ignored facts which raised a bonafide doubt regarding competency to stand trial. This applies to a case where the unconstitutional burden of proof was employed at the competency hearing. Relevant to the inquiry is evidence of the defendant's irrational behavior, demeanor at trial, and any prior medical opinion on competence to stand trial. Review of the record does not reveal evidence sufficient to raise a bonafide doubt regarding competency at the time of trial, and the district court appropriately denied relief.
Appellate Jurisdiction - Collateral Order Doctrine;
Juveniles - Transfer to Adult Status, Discretion Standard, Factors to Consider, Prior Record
United States v. Anthony Y. (a juvenile), 98-2028 (April 13, 1999)
(Phillip P. Medrano, FPD, Albuquerque, New Mexico)
This is an interlocutory appeal involving whether the district court acted within its discretion in transferring Anthony Y., a Navajo juvenile charged with murder, to adult status. The court has jurisdiction under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corporation.
HELD: (1) The purpose of the federal juvenile delinquency process is to remove juveniles from the ordinary criminal process, to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation. The district court must balance these important interests against the need to protect the public from dangerous individuals. Juvenile adjudication is presumed appropriate, unless the government establishes that prosecution as an adult is warranted. Congress has delineated six factors to guide the district court in determining whether transfer to adult status would be in the interests of justice, including age and social background of juvenile, nature of alleged offense, extent and nature of juvenile's prior delinquency record, juvenile's present intellectual development and psychological maturity, nature of past treatment efforts and juvenile's response to efforts, and availability of programs designed to treat the juvenile's behavioral problems. The district court must consider and make findings as to each factor. Review is for abuse of discretion. The government must present evidence on each factor. The district court need not find that each factor weighs in favor of transfer in order to grant the government's motion. Nor does it have to find a majority of factors weigh in favor of the prevailing party. The court is not required to give equal weight to each factor, but may balance them as it deems appropriate. The district court found that the fifth factor, past treatment efforts and response to such efforts, and the sixth factor, availability of appropriate programs, neither favored nor disfavored transfer. The district court's opinion indicates it found the evidence on these in equipoise, a decision well within its discretion. The government thus did not meet its burden of convincing the court that circumstances of past treatment and availability of treatment programs favored transfer to adult status. But the government may still prevail even though it failed to prove a particular factor warrants transfer. The district court's findings on these factors did not preclude its decision to transfer Anthony Y. to adult status.
(2) In determining the meaning of a juvenile's prior delinquency record, the Seventh Circuit has concluded this encompasses both arrests and convictions, but did not permit the government to offer evidence to prove the conduct underlying the arrests that did not result in a conviction. The Eighth Circuit has held that a juvenile's delinquency record covers only prior convictions. Even if the circuit limited Anthony Y's prior delinquency to the three adjudicated offenses, the additional conduct considered by the district court was relevant to other statutory factors like age and social background, present intellectual development, and nature of past treatment efforts. His violence and truancy are relevant. The district court's finding that social background and role in the murders weighed in favor of transfer to adult status is reviewed for abuse of discretion, and the circuit held the district court acted within its discretion.
(3) Sufficient evidence supports the district court's finding that Anthony's conduct, including killing two people, showed he played a leadership role in the offense, even though the district court did not find that he supplied the gun.
Habeas Corpus (28 U.S.C. § 2254) - Exhaust State Remedies, Futility
Bear v. Boone, 98-7043 (April 14, 1999)
(Gloyd L. McCoy, Oklahoma City, Oklahoma)
HELD: (1) Under 28 U.S.C. § 2254, a petitioner must exhaust available state remedies. Although the exhaustion rule is not jurisdictional, it creates a strong presumption in favor of requiring the prisoner to pursue his available state remedies. Section 2254 does not require repetitive presentation of a claim to state courts. The exhaustion requirement is satisfied if the federal issue has once been properly presented to the highest court of the state. A prisoner need not present his claims to the state courts if such presentation would be futile. The Court of Criminal Appeals (CCA) is the court of last resort for criminal appeals in Oklahoma. That court reviewed the trial court's judgment and found error, remanding the case to the trial court with instructions to modify the judgment. Petitioner filed a petition for rehearing challenging action by the CCA, and the CCA refused to consider the merits of that petition. In order to fully exhaust state remedies, a state's highest court must have had the opportunity to review the claim raised in the federal habeas petition. In the § 2254 petition, petitioner claimed the evidence did not support his conviction for assault with intent to commit rape. The CCA determined on direct appeal that the record in fact supported such conviction. Therefore the CCA has rejected the exact argument petitioner raises in the habeas petition. In addition, the habeas petition complains of an error made by the CCA. It is elementary that the state district court cannot overrule the CCA. Further state court proceedings would be futile.
Motion to Suppress - Review Standard;
Search Warrant - Particularity, General Rummaging, Plain View, Closed Files in Computer, Consent
United States v. Carey, 98-3077 (April 14, 1999)
Carey was charged with possessing a computer hard drive that contained three or more images of child pornography, produced with materials shipped in interstate commerce, in violation of 18 U.S.C. § 2252(A)(a)(5)(B). He entered a conditional plea of guilty, and appealed the denial of a motion to suppress and legality of his sentence. The court concluded the motion to suppress should have been granted and reversed.
HELD: (1) The court reviews the denial of a motion to suppress for clear error. Reasonableness of a search is reviewed de novo. The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging. Carey urges the search of the computer transformed the warrant into a general warrant. The plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Under the warrant, the scope of the search was circumscribed to evidence pertaining to drug trafficking. It is evident from the officer's admission that, each time he opened a JPG file, he expected to find child pornography and not material related to drugs. The items seized were not authorized by the warrant. They were in closed files and thus not in plain view. Carey's consent to search the apartment did not carry over to the contents of computer files. The scope of the consent did not permit the officer to open the files contained in the computer. The seizure of the computer was permitted by Carey's consent but not the search of the files. Because the officers had removed the computers from Carey's control, there was no exigent circumstance to permit officers to rummage through all the stored data. The law enforcement officers could employ several methods to avoid searching files of the type not identified in the warrant. Nor did they obtain a new warrant authorizing a search for child pornography.
Habeas Corpus (28 U.S.C. § 2254);
Ineffective Assistance of Counsel - Appellate Counsel, Deficient Performance and Prejudice;
Competency - Substantive or Procedural Due Process, Procedural Bar, Burden of Proof;
Procedural Bar - Independent and Adequate State Ground
Barnett v. Hargett, 98-6244 (April 16, 1999)
The state appeals the district court's grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court had determined that the petitioner raised a procedural and substantive competency claim, that counsel was ineffective in not pursuing the claims on direct appeal when the appeal had been remanded to the state district court, and the state record was insufficient to support its finding that a competency hearing had occurred and finding of competency had been entered.
HELD: (1) When a defendant contends appellate counsel was ineffective for failing to raise an issue on appeal or on rehearing, an examination of the merits of the omitted issue is usually necessary. The mandated liberal construction afforded to pro se pleadings means that, if the court can reasonably read the pleading to state a valid claim on which the petitioner could prevail, it should do so.
(2) Competency claims are based either upon substantive or procedural due process. A competency claim based on substantive due process involves the defendant's constitutional right not to be tried while incompetent. Competency to stand trial requires that a defendant have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and have a rational as well as factual understanding of the proceedings against him. A substantive competency claim is not subject to procedural bar. A competency claim based on procedural due process involves the constitutional right to an adequate state procedure to insure he is in fact competent. This is subject to procedural bar. In Cooper, the Supreme Court held that Oklahoma's requirement that a criminal defendant prove competency by clear and convincing evidence violated due process guarantees. This is a procedural claim.
(3) Before habeas relief may be granted, a petitioner must exhaust state remedies. Relief is unavailable for federal claims defaulted in state court on an adequate and independent state ground, absent a showing of cause for default and prejudice resulting therefrom, or a showing that the failure to grant habeas relief would result in a fundamental miscarriage of justice. In determining whether a state's procedural bar rule is adequate and independent, a federal court must apply the state's rule in effect at the time of the purported procedural default. This circuit has declined to apply Oklahoma's statutory procedural bar to Cooper claims not raised on direct appeal, where the direct appeal pre-dated the Supreme Court's 1996 Cooper decision.
(4) To prevail on an ineffective assistance claim, a petitioner must demonstrate deficient performance and prejudice. In the context of omitting an issue on appeal, this means failing to raise an issue obvious from the trial record that probably would have resulted in reversal. When an appeal is not taken, a petitioner need only establish deficient performance. Central to the ineffectiveness claim is whether a post examination competency hearing was held. A state court competency determination arrived at with an incorrect standard of proof is not entitled to deference.
(5) Only after concluding a state court has used the proper standard does a habeas court turn to the issue of presumption of correctness of fact findings. The presumption of correctness does not apply when some reason to doubt the adequacy or accuracy of the fact finding proceeding exists. The circuit could not conclude that petitioner received a full, fair and adequate hearing.
(6) Lack of appellate counsel on remand is attributable to the state. The circuit has emphasized the important professional and institutional obligation inherent in assuring that only those who are competent be tried. The issue of procedural competency was raised but not pursued by counsel during or after remand, a time when critical facts were being developed. Counsel could have evaluated the possibility of pursuing a substantive competency claim.
Search - Consent by Co-Resident, State Search Must Conform to Federal Standards, Refuse Consent;
Self-Incrimination - Fifth Amendment, Refusal to Consent to Search;
Admission of Evidence - Discretion Standard, Prior Bad Acts (Rule 404(b)), Prior Arrest, Harmless Error;
Instructions - Review Standard, Theory of Case;
Sufficient Evidence - Review Standard, Possess With Intent to Distribute, Conspiracy
United States v. Dozal, 98-3099 and
United States v. Gonzales, 98-3103 (April 19, 1999)
(Cyd Gilman, FPD, Wichita, Kansas)
Dozal and Gonzales were found guilty of conspiracy to distribute cocaine and one substantive distribution count. Police had conducted a warrantless search of the apartment. They limited their search to Gonzales' bedroom and the common areas. Gonzales had given consent.
HELD: (1) A person who resides with the defendant and engages in mutual use of property may authorize a warrantless search. Gonzales could give consent to search the apartment he shared with Dozal.
(2) A warrantless arrest must be supported by probable cause. The circuit reviews the legal issue of probable cause de novo, and fact findings supporting the district court's determination are reviewed for clear error. Probable cause to arrest is determined under the totality of the circumstances. Association with persons suspected of criminal conduct or nearness to the site of illegal activity does not alone suffice. Probable cause is lacking when an officer arrests a person for refusing to consent to a warrantless search or seizure. The totality of circumstances supported a finding of probable cause to arrest Dozal. A consensual search of the shared bathroom yielded two ounces of cocaine. An officer monitoring surveillance equipment overheard Dozal indicate, by the use of the words "we" and "us," that multiple persons played a role in the cocaine transaction.
(3) As to evidence seized under the state's search warrant, state searches must conform to federal constitutional requirements. The affidavit established the probability that officers would find more evidence of criminal conduct in the apartment.
(4) Dozal objects to the government's use of his refusal to allow officers to search property under his exclusive control. The government used this refusal to show that Dozal had an interest in not having these areas searched. In Doyle v. Ohio, the Supreme Court held the defendant may not be impeached with evidence of his silence at the time of his arrest and after his receipt of Miranda warnings. To the extent Dozal argues he was penalized for invoking his Fifth Amendment privilege against self-incrimination, the circuit noted he was not in custody at the time he refused to consent to the search. Accordingly, his statements to officers were not protected by Miranda safeguards. The circuit recognized that the failure to consent to search cannot form any part of the basis for reasonable suspicion. The circuit noted that asking a jury to draw an adverse inference from such a refusal may be impermissible, if the testimony is not admitted as a fair response to a claim by the defendant or for some other purpose. But a careful review of the trial transcript convinced the court that the contested statements were introduced, not to impute guilty knowledge to Dozal, but for the purpose of establishing dominion and control over the premises where a large part of the cocaine was found.
(5) The court reviews evidentiary rulings under Rule 404(b) for abuse of discretion. Knowledge and intent are permissible purposes for introducing prior bad acts. But without either a conviction or some evidence that Dozal was knowingly involved with concealed drugs, his prior arrest for possession of marijuana was not a crime or a wrong. The fact the officer found marijuana behind the door panels of a car in which Dozal was a passenger does not establish knowledge or intent. The district court should not have admitted the testimony of the 1996 arrest. However, the admission was harmless error.
(6) In Gonzales' appeal, the district court's findings support the existence of probable cause to arrest Gonzales.
(7) As to Gonzales' consent to search, voluntariness is a question of fact to be determined by the totality of the circumstances, and consent to search may be voluntary even though the consenting party is being detained. His consent was obtained in Spanish by a detective fluent in that language.
(8) The circuit reviews the district court's decision to give a particular jury instruction for abuse of discretion, and considers the instructions as a whole de novo to determine whether they accurately informed the jury of governing law. A defendant is entitled to an instruction on his theory of the case, if the instruction is a correct statement of law, and he has offered sufficient evidence for the jury to find in his favor. But it is not error to refuse to give a requested instruction if the same subject matter is adequately covered in the general instructions. Given the discovery of cocaine and scales, in areas of the apartment that Gonzales controlled or shared, the trial court could have instructed the jury on the elements of conspiracy, without including language of mere presence or mere association. The trial judge did not abuse its discretion in refusing the precise language Gonzales requested.
(9) The circuit reviews the record de novo to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Possession with intent to distribute requires proof that the defendant possessed a controlled substance, knew he possessed it, and intended to distribute. Possession is constructive rather than actual. The evidence was sufficient to support the conviction on possession with intent to distribute.
(10) A conspiracy involves an agreement with another person to violate the law, knowledge of the essential objectives of the conspiracy, knowing and voluntary involvement, and interdependence among conspirators. The jury may infer an agreement from circumstantial evidence that indicates concerted action in furtherance of a common purpose. The evidence was sufficient.
Amount of Loss (§2F1.1) - Review Standard, Intended Loss, Incapacity to Inflict;
Appellate Review - One Panel Cannot Overrule Prior Decision of Another Panel;
More Than Minimal Planning;
Supervised Release - Conditions Reasonably Related to § 3553 Factors, Fail to Object Not Waiver
United States v. Ensminger, 98-6179 (April 19, 1999)
(Paul Antonio Lacy, FPD, Oklahoma City, Oklahoma)
Ensminger was convicted of making false statements in violation of 18 U.S.C. § 1001. The court used the guidelines under §2F1.1 to arrive at his sentence. The scheme involved obtaining an ownership interest in real property through submitting bogus financial instruments. A third count charged Ensminger with presenting a document to the Marshal's office falsely indicating he had prevailed in a civil action, when in fact the action had been dismissed. Ensminger had plead guilty to that count in exchange for dismissal of other counts. He filed objections to the presentence report as to calculation of the intended loss.
HELD: (1) The court reviews the district court's legal interpretation of the guidelines de novo, and reviews findings of fact for clear error.
(2) The district court sentenced Ensminger based on the uncontested value of properties, $547,000 that he attempted to have the U.S. Marshal seize. The district court sentenced him based upon an intended loss of greater than $500,000 under §2F1.1(b)(1)(K). Ensminger urged no possibility of loss occurred as a result of the document he had submitted to the Marshal Service. This circuit has previously held that the loss defendant subjectively intended to cause is not controlling if he were incapable of inflicting that loss. An intended loss cannot exceed the loss a defendant could have occasioned if his fraud had been successful. While it is not disputed that the fair market value of properties Ensminger attempted to obtain was $547,000, there is also no dispute that there was no way the scheme could have been successful. Therefore the circuit held the ten-level enhancement was clearly erroneous. The circuit noted that other circuits have disagreed with its position, but one panel of the court cannot overturn a decision of another panel absent in banc consideration.
(3) More than minimal planning under §2F1.1(b)(2)(A) is present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune. See also §1B1.1, n.1(f). The two level adjustment was not clearly erroneous.
(4) The district court imposed special conditions of supervised release relating to financial disclosures and restrictions. These are reviewed for abuse of discretion. However, any condition chosen must be reasonably related to the factors set forth in subsections of § 3553, involve no greater deprivation of liberty than is necessary, and be consistent with any pertinent policy statements by the Sentencing Commission. Ensminger did not object to conditions imposed. But under similar circumstances, the circuit had found no waiver of the issue. The financial conditions imposed met the requirements of 18 U.S.C. § 3583(d).
Sentencing - Hearsay, Information From Other Judicial Proceeding;
Vulnerable Victim - Unusually Vulnerable, Physical Restraint;
Upward Departure - Extreme Conduct (§5K2.8), Reasons For Extent of Departure, Voluntary Manslaughter;
Guidelines - Double Counting;
Restitution - De Novo Review of Legality, Aggrieved Parties, Victims
United States v. Checora, Cuch, Redcap, and Kuch, Jr., 97-4184, 97-4190, 97-4191, 97-4192 (April 21, 1999)
The four plead guilty to committing voluntary manslaughter while within Indian country. Defendants beat their victim during a fight, dragged him to an abandoned house, slit his throat twice, and then placed a 360 pound stove on him to conceal the body. The court enhanced each defendant's offense level because the victim was unusually vulnerable and physically restrained, and departed upward six levels for each defendant because of extreme conduct. Because the district court gave no principled reason for the extent of the upward departures, the circuit remanded for specific findings, and vacated a portion of the restitution orders.
HELD: (1) A defendant at sentencing does not have an absolute right to confront witnesses whose information is available to the court. The fact that some material upon which the judge relies may have had its source in a judicial proceeding in which the defendant was not represented by counsel does not bar its use. The presentence report relied upon testimony of co-defendants.
(2) Section 3A1.1(b) provides for enhancement when the defendant knew or should have known the victim was unusually vulnerable due to age, physical or mental condition, or was otherwise particularly susceptible to the criminal conduct. Murray was small, outnumbered, drunk and could not run away. Challenges to the district court's fact findings are reviewed for clear error. Interpretation of the guidelines is reviewed de novo. Whether the defendants knew Murray was intoxicated is not dispositive. The question is whether the defendants should have known the victim was vulnerable. The defendants' own cognitive incapacitation due to intoxication was their own doing. The district court was correct to consider the size disparity.
(3) Section 3A1.3 provides for a two-level increase where the victim was physically restrained during the offense. The circuit affirmed based on the chasing and tackling of Murray to prevent his escape. The defendants must use physical force or another form of compulsion to achieve the restraint. Restraint means the defendants' conduct must hold the victim back from some action. Section 3A1.3 enhancements are determined, in the case of jointly undertaking criminal activity, on the basis of all reasonably foreseeable acts and omissions of others in furtherance of jointly undertaking criminal activity. The guidelines state that the victim restraint adjustment may not be applied where the unlawful restraint is an element of the offense. But the physical restraint here is not a necessary element of the crime of voluntary manslaughter.
(4) The district court departed upward six levels based on extreme conduct under §5K2.8. Examples include torture, gratitutious infliction of injury, or prolonging pain or humiliation. The circuit reviews the decision to depart and the extent of departure for abuse of discretion. The district court did not abuse its discretion in determining to depart, but gave no principled reason for the extent of departure. Therefore the circuit remanded. Voluntary manslaughter is the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion. See 18 U.S.C. § 1112(a). The conduct of each defendant fell outside the heartland of a typical voluntary manslaughter case.
(5) There was no impermissible double counting by departing for extreme conduct, and applying the vulnerable victim and restrain of victim enhancements. Whether a district court impermissibly double counts is a question of law reviewed de novo. The vulnerable victim enhancement is distinct from the extreme conduct provision. The latter focuses on the nature and brutality of the defendant's conduct. The vulnerable victim enhancement focuses on the crime's victim. No overlap occurred between the restraint of victim enhancement and the extreme conduct provision. The circumstances of this case are sufficient to justify an upward departure for extreme conduct without consideration of the physical restraint.
(6) Warren Ell Kuch challenges the order to pay $5,000 of the total restitution amount to the Utah State Division of Child and Family Services because Murray had two sons from a prior marriage that were in foster placement. The court reviews a challenge to the legality of restitution de novo. Section 3651 provides that a defendant may be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had. Section 3651 was repealed November 1, 1987. The new statute is 18 U.S.C. § 3663(A) which provides that the district court shall order a defendant to make restitution to the victim of the offense. Victim is defined as any person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered. Murray's sons are victims within the meaning of the statute. However, there is insufficient evidence to uphold the decision to order that $5,000 be paid. The pertinent statute provides that if, as here, the victim is under 18, the legal guardian of the victim, another family member, or any other person appointed as suitable by the court may assume the victim's rights under § 3663(A). The district court has made no finding that the child and family services agency serves as legal guardian, nor has the court appointed the agency as a suitable proxy. The district court must reconsider that portion of the order. Although the issue was raised only by Warren Ell Kuch, the circuit exercised its discretion to apply the holding to other defendants as they are all equally affected.
Wiretap - Privacy, Review Standard, Recording by Informant, Risk of Being Overheard, Speak in Other Language
United States v. Longoria, 98-3022 (April 27, 1999)
Longoria moved to suppress certain audio and video tapes recorded by the government's informant, urging they violated the wire tap statute, 18 U.S.C. § 2510-2522. The statute defines the manner in which law enforcement personnel and persons working under color of state law, such as an informant, may conduct electronic surveillance and whether a prior court order is required. The legislative history reflects that the act was to parallel the reasonable expectation of privacy test articulated by the Supreme Court. For Title III to apply, the court must conclude the defendant had an actual, subjective expectation of privacy, that his communications were not subject to interception, and the defendant's expectation is one society would objectively consider reasonable. Katz, 389 U.S. 347. The government's informant overheard and recorded Longoria conversing with his co-defendants in Spanish, a language the informant did not understand.
HELD: (1) The district court's fact findings are reviewed for clear error and the ultimate determination of whether society would recognize the defendant's subjective expectation of privacy is reviewed de novo. The circuit assumed Longoria had an actual subjective expectation of privacy but held this was not one which society would objectively consider reasonable.
(2) What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. The risk of being overheard is inherent in the conditions of human society. This applies with equal force to statements exposed to government informants. Even though Longoria did not think the informant could understand Spanish, the circuit could find no precedent recognizing expectations of privacy based on a listener's ability to comprehend a foreign language. In an increasingly multi-lingual society, exposing conversations to others must necessarily assume the risk that statements will be overheard and understood.
Habeas Corpus (28 U.S.C. § 2241) - Attacks Execution, Not Imposition of sentence, Distinguished From § 2217
Caravalho v. Pugh, 99-1001, 99-1038, 99-1112 (April 27, 1999)
The district court denied Caravalho's § 2241 habeas petition. Because Caravalho has not demonstrated a reasoned non frivolous argument, the circuit denied leave to proceed on appeal and dismissed the appeal. Caravalho was convicted in the District of Hawaii of cultivating marijuana. His conviction was affirmed in the Ninth Circuit. He previously filed a § 2255 petition in the District of Hawaii. The district court ordered Caravalho to show cause why his case should not be dismissed where he has another remedy under § 2255. Caravalho responded that § 2255 was inadequate due to the statute of limitations and successive writ provisions of the AEDPA. The district court held that § 2241 attacks execution of the sentence rather than the validity of its imposition. The circuit agreed.
Admission of Evidence - Discretion Standard, Relevancy, Harmless to Exclude;
Statutes - Common Law Term, Assault;
Expert - Disclosure Under Rule 16;
Witnesses - Court Authority Over Mode of Questions (Rule 611);
Prosecutorial Misconduct - Characterization of Testimony;
Cumulative Error;
Indictment - Constructive Amendment, Grand Jury, Fifth Amendment;
Acceptance of Responsibility - Review Standard, Burden of Trial, Contest Element of Offense;
Downward Departure - Family Circumstances
United States v. Gauvin, 97-2328, 97-2363 (April 28, 1999)
(Judith A. Rosenstein, FPD, Albuquerque, New Mexico)
Gauvin was convicted of assault with a dangerous weapon in Indian country and assault on a federal officer.
Gauvin was driving his Ford pick up at 1:15 a.m. drunk. Officer Sandoval noticed his vehicle swerving and engaged her lights and sirens to stop him. Gauvin accelerated. Sandoval tried to maneuver beside him and he swerved his truck. Deputy Sheriff Montoya joined in the chase. Sandoval fired her gun at Gauvin's rear tire, attempting to disable the vehicle. Four miles after the sheriff entered the chase, the road ran into the Navajo Nation Indian Reservation. Two Navajo police officers joined. Gauvin's truck and Officer Redhouse's car flipped into a ditch.
Gauvin wanted to challenge the validity of the police reports which indicated Gauvin had caused the collision. Gauvin's accident reconstruction experts had suggested the accident was caused by Officer Redhouse. The district court excluded the evidence based on relevancy and unfair surprise. Gauvin wanted to discredit police reports by establishing that no matter how clear it became to an officer that his report might be in error, the policy instructed the officer not to alter the report.
HELD: (1) The court reviews exclusion of evidence for abuse of discretion. The testimony would have been relevant. Neither 18 U.S.C. § 111 nor 113 defines assault. Where a federal criminal statute uses the common law term of established meaning without otherwise defining it, the general practice is to give that term its common law meaning. Assault is traditionally defined as attempted battery, or as placing another in reasonable apprehension of battery. Gauvin's guilt could be established by showing he caused the crash, or by showing he swerved his car in a manner placing the officers in reasonable apprehension of battery. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it would be without the evidence. The evidence should not have been excluded based on the relevancy objection.
(2) Rule 16 requires disclosure in some cases of expert testimony at the discovery phase. Rule 702's definition of expert is broad. Welch's testimony qualified him as an expert and is subject to the limitations under Rule 16.
(3) Even if this testimony were improperly excluded, the error was harmless.
(4) The district court admitted testimony of Officer Dody that, in making his report he interviewed "impartial witnesses" and police officers. Officer Segotta testified he found nothing suggesting improper motive in Officer Sandoval's discharging her firearm. Any error in describing the witness as impartial was cured by immediate jury instructions. The trial court did not abuse its discretion or commit plain error in admitting the challenged testimony of either officer.
(5) Defense counsel questioned Officer Sandoval on the circumstances that existed when she fired the gun. When counsel did not believe Officer Sandoval had answered the question, he asked it again. The prosecution objected to defense counsel's tone, and the district court sustained the objection. The district court made the suggestion that the officer answer yes or no and then explain. The district court's comment was a proper exercise of authority under Rule 611 over the mode and order of interrogating witnesses.
(6) The prosecutor's closing argument did not amount to plain error. The prosecutor characterized one expert's testimony as stating that alcohol merely makes one uninhibited about things he would have done anyway. The prosecutor's characterization was correct. Any prejudice that did result was not plain error.
(7) The cumulative error analysis merely aggregates all errors that individually have been found to be harmless. Having found no errors, the court was left with nothing to aggregate.
(8) There was no Fifth Amendment violation as Gauvin was convicted on the basis of facts and a theory of the case presented to the grand jury. A constructive amendment of an indictment occurs when presentation of evidence and jury instructions so modify the essential elements of the offense charged in the indictment that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.
THE GOVERNMENT'S CROSS-APPEAL
(9) The district court did not err in granting a downward departure adjustment for acceptance of responsibility. Determination of acceptance of responsibility under §3E1.1 is a question of fact reviewed under the clearly erroneous standard. The district court found Gauvin accepted responsibility for his crime, notwithstanding the fact that Gauvin put the government to its burden of trial. Conviction by trial does not automatically preclude a defendant from consideration for such reduction. At the sentencing hearing, the judge found that Gauvin's conduct demonstrated acceptance of responsibility. The circuit held the district court's fact determination, that Gauvin understood the seriousness of his crime and accepted responsibility, was not clearly erroneous. Gauvin admitted to all the conduct, but disputed his state of mind. While the jury disagreed with the defense that Gauvin lacked the requisite intent, this does not undermine the good faith in which the district court found the defense was asserted.
(10) The district court did not err in departing downward for exceptional family circumstances. As Koon made clear, the district courts retain much of their traditional sentencing discretion. The circuit considers whether the factual circumstances supporting a departure are permissible factors, whether the departure factors relied upon are sufficient to remove the defendant from the heartland, whether the record sufficiently supports the factual basis underlying the departure, and whether the degree of departure is reasonable. Family circumstances and responsibilities are a permissible but discouraged factor. Therefore the district court may depart based on family circumstances only if the factor is present to an exceptional degree, or in some other way makes the case different from the ordinary case where the factor is present. This requirement blends the first two factors for appellate review. The next determination is whether Gauvin's family circumstances remove him from the heartland. The court gives substantial deference to the district court in resolving this. The district court did not err in finding that Gauvin's crime was outside the heartland. The judge clearly explained the basis for finding the circumstances extraordinary. On the third determination, the facts support the departure. The degree of departure was reasonable.
Wiretap - Authorization, Necessity, False Statements and Omissions;
Admission of Evidence - Wiretaps, Rule 404(b) Evidence of Threatening Co- Conspirator, Discretion Standard, Intrinsic Acts, Harmless Error;
Sufficient Evidence - Review Standard, Conspiracy, Possession With Intent to Distribute, Maintain Place to Manufacture, Aid and Abet;
Role in Offense - Manager or Supervisor (§3B1.1);
Enhanced Statutory Penalty (21 U.S.C. § 851) - Prior Drug Conviction, Notice by Information, Proof of Priors, Failure to Prove Identity;
Resentencing - De Novo, Receipt of Any Evidence Court Could Have Heard at First Sentencing;
Amount of Drugs - Relevant Conduct, Conspiracy;
Sentencing - Factual Inaccuracies in PSR, Waived if No Objection
United States v. Green, Browne, Bly, 97-6045, 97-6046, 97-6047 (April 28, 1999)
(James P. Moran, FPD, Denver, Colorado (Green))
(Theresa Brown, FPD, Oklahoma City, Oklahoma (Bly))
This involves a 97 count indictment arising out of a conspiracy to distribute crack.
GREEN'S APPEAL:
HELD: (1) The federal wiretap statute, 18 U.S.C. §§ 2510-22, set up special procedures for obtaining wiretap authorization, including presenting a written application to a judge. The application must show that normal investigative procedures have been tried and are unlikely to succeed. If an application is granted without meeting the necessity requirement, the wiretap evidence must be suppressed. The application and affidavit are subject to the requirements of Franks v. Delaware as to inclusion of false information and also to material omissions. Green has not shown that Agent Burns recklessly omitted material information from the wiretap application.
(2) The decision to admit the wiretap tapes is reviewed for abuse of discretion. The circuit takes a flexible approach in determining whether the prosecution has laid a sufficient foundation to insure the accuracy of the evidence. The circuit upheld the admission of the wiretap evidence.
(3) The court reviews for abuse of discretion admission of Rule 404(b) evidence that Green threatened a co-conspirator with a gun in order to collect missing drug profits. In a conspiracy case, acts in furtherance of the conspiracy are part of the act charged. Evidence of such acts is intrinsic and does not implicate Rule 404(b).
BLY'S APPEAL:
(4) In reviewing sufficiency of the evidence, the court reviews the record in the light most favorable to the government to determine whether a reasonable jury could find guilt beyond a reasonable doubt.
(5) To prove a conspiracy in violation of 21 U.S.C. § 846, the government had to show that Bly agreed to violate the law, he knew the essential objectives of the conspiracy, and knowingly and voluntarily became part of the conspiracy.
(6) To prove possession with intent to distribute, the government had to prove Bly knowingly possessed cocaine and intended to distribute it. To prove maintaining a place to manufacture or distribute crack in violation of § 856, the government must prove the defendant knowingly opened or maintained a place for the purpose of manufacturing by repackaging, distributing, or using any controlled substance. Aiding and abetting requires proof that the defendant willfully associated with a criminal venture, and sought, through some affirmative action, to make that venture succeed.
(7) The court allowed testimony that Mr. Phillips was arrested with one kilogram of cocaine and admitted the kilogram of cocaine into evidence. Phillips said the kilogram was not intended for Bly or any other defendant. Admission of evidence is reviewed for abuse of discretion. An erroneous admission of evidence is harmless unless it had a substantial influence on the outcome.
(8) Section 3B1.1 provides a three level increase if the defendant were a manager or supervisor but not an organizer or leader. The district court did not err in enhancing Bly's sentence.
(9) Section 851(a)(1) provides for an enhanced statutory penalty when a defendant has previously been convicted of prior drug violations. The court reviews de novo whether a rational trier of fact could find the evidence sufficient beyond a reasonable doubt. The government filed a motion under § 851 giving notice that Bly had two prior felony drug convictions. Bly claimed he was not convicted of either. The district court found the government had established Bly's identity beyond a reasonable doubt and that conviction A62770 was valid. As to A62770, the circuit disagreed with the district court's finding beyond a reasonable doubt that the two men, Bly and Eric Daniels, were the same.
(10) As to number FSB266449, CR47752, Derek Taylors plead guilty to this offense on August 18, 1988. The district court determined Bly was Mr. Taylors. The circuit disagreed because aliases can be faddish among gang members. Bly's PSR indicated he was convicted of several crimes in the late 1980's in California, but there is nothing in the record to indicate his stipulated conviction is this one. Again, the government failed to introduce fingerprints. The government's own witness could not identify Bly as the person appearing in a faxed photo of Taylors. The court vacated Bly's sentencing and remanded for sentencing de novo. De novo resentencing permits the receipt of any relevant evidence the court could have heard at the first sentencing hearing.
BROWNE'S APPEAL:
(11) The court reviews the district court's calculation of amount of drugs under the clearly erroneous standard. This includes relevant conduct. In a conspiracy, the defendant is accountable for conduct of others within the scope of the agreement and reasonably foreseeable to him. The "scope of the agreement" and "reasonable foreseeability" components are independent and necessary elements of relevant conduct under §1B1.3(a)(1)(B). The scope of the criminal activity undertaken by the defendant is not necessarily the same as the scope of the entire conspiracy. The district court must make particularized findings tying the defendant to the relevant conduct. The district court's finding was not sufficient, and the court remanded for further findings.
(12) As to the objection that the cocaine should be treated as powder and not crack, a defendant must raise factual inaccuracies in a presentence report before the district court in order to preserve the issue on appeal. Therefore the issue is waived.