United States v. Concha, 99-2171 (December 1, 2000)

(Thomas B. Jameson, FPD, Albuquerque, New Mexico)

Concha was convicted of assault and felon in possession of a firearm. Because he had at least three prior violent felonies his sentence was enhanced under the ACCA.

HELD: (1) Failure to object to the deliberate ignorance instruction at trial results in reversal for plain error. A plain error is grounds for reversal only when the error is clear or obvious and it affects the defendant's substantial rights. The defendant has the burden of persusation as to prejudice. The district court instructed the jury that to convict Concha of felon in possession of a firearm, it had to conclude that he knowingly possessed a firearm. The court instructed that knowledge could be infered if the defendant deliberately blinded himself to the existance of a fact. Concha does not contend that this is an inaccurate satatement of the law but argues there is insufficient evidence of deliberate ignorance to support the instruction. This court has recognized that instructing the jury on deliberate ignorance is rarely appropriate. The court did not decide whether this was one of the rare cases that warrants a deliberate ignorance instruction becasue the court concluded there was no plain error in giving the instruction. There was overwhelming evidence of his actual knowledge that he possessed the gun. In some cases, a deliberate ignorance instruction may allow a jury to convict a defendant for negligence, rather than knowing, acts. But here, the instruction explicitely instructed the jury that neither mistake nor negligence was sufficient. The isntruction used a subjective standard -- that the defendant deliberately blinded himself to the existence of a fact.

(2) The court reviews de novo sentencing enhancements under the Armed Career Criminal Act. The government introduced evidence of four prior felony convictions, three of which took place in the United Kingdom. It is not clear under § 922(g)(1) or under § 924(e)(1) what constitutes "convictions by any court. Section 921(20) excludes certain federal and state crimes but makes no comprable mention of foreign crimes. If § 922(g) were meant to cover foreign crimes, that would result in the anomalous situation that fewer domestic crimes would be covered than woudl be foreign crimes. Thus the definition of "crime punishable by imprisonment for a term exceeding one year" provides some evidence that Congress intended § 922(g) to cover only federal and state crimes. Therefore the ACCA would exclude foreign convictions. The court was also reluctant to allow foreign convictions to be used where foreign criminal defendants are not necessarily given the same constitutional protections. The court disagreed with other circuits on this question.

Nuckols v. Gibson, 99-6325 (December 4, 2000)

(Gary S. Peterson, Oklahoma City, Oklahoma)

This is a habeas corpus action under 28 U.S.C. § 2254. The circuit held that the state prosecutor's failure to turn over material information regarding alleged criminal activities of the state's principal witness undermine judicial confidence in the verdict. Denial of that evidence hampered petitioner's ability to cross examine the witness. The circuit concluded that petitioner was deprived a fair trial and reversed the denial of habeas corpus relief by the district court.

HELD: (1) The test of materiality of Brady evidence is whether the trial resulted in a verdict worthy of confidence despite the non-disclosure of the contested evidence. The sole evidence linking Nuckols to the death of Howl was Nuckols' confession. Thus, it was critical for the state to establish the admissibility of the confession, but its admissibility hinged upon proof that Nuckols initiated the interview which produced the incriminating statements. Otherwise the confession would have had to have been suppressed. The only witnesses were Nuckols and Deputy Sheriff Ware, each of whom negated the other's testimony. The question of credibility was critical. The prosecution withheld evidence that would have allowed defense counsel to test Ware's credibility. Ware had been involved in thefts and another case.

United States v. Allen, 99-3236 (December 5, 2000)

(Timothy J. Henry, FPD, Wichita, Kansas)

Allen was convicted of possession of crack cocaine with intent to distribute and a § 924(c) charge.

HELD: (1) The court reviews the district court's fact findings under the clearly errenous standard in connection with the claim of illegal arrest. A probable cause to arrest exists when an officer, considering the totality of the circumstances is led to the reasonable belief that an offense has been or is being committed. An anonomous tip that a person is carying a gun, without more, does not give rise to a reasonable suspision to justify a stop and frisk. But here, identity was the only matter in question. Warrants for Allen's arrest had been issued thus giving officers probable cause to conclude that a crime had been committed. The tip only concerned the whereabouts and identity of Allen.

(2) The court reviews a district courts determination of standing de novo. A Fourth Amendment right of privacy is a personal right. The defendnat has the burden of showing a legitimate possesory interest or lawful control over the car. Mere presence is not sufficient. The fact that Allen was later shown to have a legitimate possessory interest in the car is not relevant to whether he met his burden at the suppression hearing.

(3) Absent exegent circumstances or consent, law enforcement officers may not enter the home of a third party to execute an arrest warrant without a search warrant. The district court found that the arresting officers had consent from a person with authority to grant consent.

(4) The court reviews application of legal standards of the Speedy Trial Act de novo and fact findings for clear error. In order for a district court to grant an ends of justice continuance it must consider factors set forth in § 3161 and must state its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interest of the public and defendant in a speedy trial. The district court did not set forth its reasons and the record does not clearly establish that the court considered these factors. The order is insufficient as an ends of justice continuance. Nonetheless the circuit held that when granting a continuance as a result of an unavailable and essential witness, § 3161 provides ample independent statutory authority for excluding such periods of delay from the speedy trial calculation.

(3) The court reviews sufficiency of the evidence in the light most favorable to the government. The court found the evidence sufficient to prove possession with intent to distribute. A person constructively possesses contraband when he or she knowingly holds ownership, dimenion or control over the object. A sufficient nexus was established between Allen and the drugs.

(4) The court reviews evidentiary hearings for abuse of discretion.

Preston v. Gibson, 00-7069 (December 7, 2000)

One of the statute of limitations in the AEDPA provides that a petition may be filed within a year of the date on which a constitutional right asserted was initially recognied by the Supreme Court if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Preston however relied on cases decided by a state court therefore § 2244(d)(1)(C) does not apply. Nor can Preston rely on subsection (d)(1)(D) which has to do with discovery of new evidence.

Plunk v. Givens, 00-1375 (December 12, 2000)

The district court dismissed the federal civil rights complaint filed pursuant to Bivens. Plunk alleged violation of his due process rights during prison disciplinary proceedings. The district court found that the complaint was frivelous and dismissed the complaint pursuant to § 1915(A). The statutory language authorizes screening regardless of the prisoner litigant's fee status. Section 1915(A) applies to all prison litigants without regard to their fee status, who bring civil suits against a government agency. The prison disciplinary conviction was supported by some evidence.

United States v. Espinosa, 00-2110 (December 14, 2000)

Espinosa seeks a certificate of appealability to appeal the denial of his § 2255 motion to vacate sentence. In addressing the requirements of obtaining a COA under § 2253(c), the Supreme Court has held that a defendant must show a substantial denial of a constitutional right by demonstrating that reasonable jurist could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. In considering the appeal, the court addressed whether Rule 15(c) F.R.Civ.P. allows an amended motion to relate back to the date of original finding. The defenant had timely filed a § 2255 motion. After expiration of the one year time limit under the AEDPA, and while the motion was pending, the defendant filed a supplemental motion. The magistrate denied the first set of claims on the merits, and denied the claims in a supplemental motion as barred by the statute of limitations.

HELD: (1) Rule 15 allows a party to amend or supplement a pleading. The court reviews the trial court's decision on allowing an amendment for abuse of discretion. The district court made the legal conclusion that it did not have authority to allow an untimely amdnement. This is a question of law. Pursuant to Rule 15, an untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the district court's discretion, relate back to the date of the original motion if the original motion was timely filed and the proposed amendment does not add a new claim or insert a new theory. The defendant's supplemental motion raised completely new claims. To allow an amendment under this circumstance would be tentamount to a judicial rescission of the AEDPA statute of limitations period.

United States v. Keeling, 99-6209 (December 15, 2000)

Keeling appeals his sentence for possesion with intent to distribute approximately 150 pounds of marijuana, and use of a communication facility to facilitate a conspiracy to possess with intent to distribute marijuana. At trial he was acquitted of several additional charges.

HELD: (1) As to supervised release, based on the Santos case, the mandatory sentencing provisions are to be calculated solely with respect to drug quantities involved in the offense of conviction. Therefore the statutory minimum term is three years and a limited remand is required.

(2) The court reviews questions of law regarding the guidelines de novo and findings of fact under the clearly erroneous standard. The government must prove by a preponderence the amount of drugs attributable for purposes of the guidelines. To constitute relevant conduct, the court must find the offense in question included conduct set forth by §1B1.3(a)(1)(A) and (B), the offense must be groupable with the offense of conviction, and the offense must be part of the same course of conduct or common scheme or plan.

(3) The trial court was entitled to consider drug quantities from acquitted counts. Even after Apprendi, the determination of relevant conduct for purposes of the guidelines remains for the court.

(4) An obstruction of justice enhancement is reviewed under the differential standard of review of the clearly erroneous standard.

(5) The claim as to what Keeling should be responsible for in forfeiture is reviewed under the plain error standard. The court adopted the Fourth Circuit's McHam analysis and concluded that for purposes of § 853, "proceeds" contemplates gross proceeds and not merely profit.

(6) In Apprendi, the Supreme Court held that any element of the offense, other than a prior conviction, that raises a statutory maximum, must be pled in the indictment and proved beyond a reasonable doubt. Apprendi applies to drug quantities under § 841(b), and to a case pending on direct review and not yet final. Although the indictment charged approximately 150 pounds, drug quantity was not presented to the jury. There was no objection. Review is for plain error. The error must be judged against a complete record. The jury was instructed the government was not required to prove quantity. A defendant can demonstrate prejudice if the evidence suggests a reasonable doubt on quantity. It is doubtful that Keeling can satisfy this burden as to prejudice. Because the evidence was overwhelming, the fourth element of the plain error test cannot be satisfied.

United States v. Bustillos-Munoz, 99-1397 (December 15, 2000)

(David C. Japha, Denver, Colorado)

Munoz entered a conditional guilty plea to possession with intent to distribute cocaine. He appeals the denial of his motion to suppress.

HELD: (1) The court examines traffic stops under the same standards as an examination fo an investigative detention, i.e., a Terry stop. The court asks whether the officer's action was justified at its inception, and whether that action was reasonably related in scope to the circumstances which justified the interfearance in the first place. In Botaro-Ospina, this court adopted a new standard for assessing the constitutionality of a traffic stop. A traffic stop will be valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspision that a traffic or equipment violation has occurred or is occurring. It is irrelevant whether the officer may have had other subjective motives for the stop. In this case the officer's decision to stop Munoz was justified at its inception.

(2) Although the trooper quickly determined that Munoz's high beams were not on and thus he was not in violation of Colorado law, the investigation revealed that Munoz' headlights were out of adjustment and in violation of another Colorado statute. Although an initially valid stop can of course at some point become unreasonable, the court found no such violation here. The trooper's suspision that Munoz was in violation of the faulty equipment statute permitted him to request the license and registration.

(3) So long as a reasonable person feels free to disregard the police and go on his way, the encounter is consensual. This court has established a bright line rule that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him, a finding that documentation was returned does not end the matter. This may not always be sufficient to demonstrate that the encounter has become consensual. But in this case once the trooper returned the license and registration the detention ended. There was no evidence of a coercive show of authority, such as the presence of more than one officer, display of weapon, physical touching or use of a commanding tone. The trooper advised Munoz that he was free to leave.

(4) The trooper did not exceed the scope of consent by searching the bag found in the car. Where a suspect does not limit the scope of a search and does not object when the search exceeds what he later claims was a more limited consent, an officer is justified in searching the entire vehicle.

(5) Section 3501(b), 18 U.S.C., a congressional attempt to replace Miranda with a generalized voluntariness test, was recently held unconstitutional in Dickerson. The fact the judge applied the § 3501 voluntariness test does not require reversal. In addition to making a voluntariness finding, the judge made clear that adequate Miranda warnings had been given. The judge had found that Munoz could understand even though his primary language was Spanish. Miranda laid down concrete constitutional guidelines. Those guidelines estalish that the admissibility in evidence of any statement given during custodial interrogation of a suspect depends on whether the police provided the suspect with four warnings. These warnings are the right to remain silent, that anything he says can be used against him in a court of law, that he has a right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. These four rights do not include a constitutionally compelled right to be warned that one may answer questions without an attorney being present and then may decide to stop and consult an attorney.

United States v. Osage, 99-2235 (December 15, 2000)

Osage was convicted of possession with intent to distribute one kilogram or more of methamphetamine. He entered a conditional guilty plea and reserved the right to appeal the suppression ruling. The circuit concluded the search exceeded the scope of consent and reversed and remanded.

HELD: (1) The court reviews the denial of a motion to suppress under the clearly erroneous standard as to fact findings, but de novo __________ to the ultimate determination of reasonablness.

(2) When law enforcement officers rely on consent as the basis for a warrantless search, the scope of consent determines the permissible scope of the search. The scope of consent is measured by objective reasonableness - what would the typical reasonable person have understood by the exchange between the officer and suspect. A failure to object to the search of a particular area may be considered an indication that the search was within the scope of consent. The question here is whether Osage's failure to object to a search of a sealed can permitted the officer, in the course of conducting the search, to destroy the can or render it completely useless for its intended function. In Jimeno, the Supreme Court held it was objectively reasonable for police to conclude that the general consent to search the car included consent to search containers within the car that might hold drugs, but it is unlikely that a suspect would agree to breaking open a locked briefcase within the trunk. The question is whether a police search which destroys or renders completely useless the items searched exceeds the scope of consent. A search can be so invasive or destructive as to go beyond the scope of the search consented to. The circuit held that the opening of a sealed can, thereby rendering it useless and incapable of performing its designated function, is more like breaking open a locked briefcase than opening the folds of a paper bag. Before an officer may actually destroy or render completely useless a container which would otherwise be within the scope of a permissive search, the officer must obtain explicit authorization, or have some other lawful basis upon which to proceed.

United States v. Jones, 97-1377 and 97-1463 (December 19, 2000)

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

This case was remanded back to the circuit from the U.S. Supreme Court in light of Apprendi. The indictment did not allege the amount of cocaine base involved in either of two counts. The jury found Jones guilty of both counts. Jones was sentenced under § 841(b)(1)(A), carrying a range of ten years to life. Jones was sentenced to 360 months imprisonment on each count to be served concurrently and five years supervised release on each count. Jones raised the Supreme Court Nathanial Jones case as the basis of his argument that he should be sentenced within the maximum 20 year penalty of § 841(b)(1)(C) because of the failure of the indictment to charge quantity. Originally the Tenth Circut had rejected that argument.

HELD: (1) Apprendi holds, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi is to be applied to all cases pending on direct review and not yet final.

(2) The court reviews the leglity of an appellant sentenced de novo. The Supreme Court left open the question of whether any fact that increases the penalty for a crime beyond the prescribed statutory maximum, such as drug quantity under § 841(b) is an essential element of the offense that must be alleged in the indictment. The circuit answered that question in the affirmative and concluded that Jones' sentence impermissibly exceeded the statutory maximum term applicable to the offense charged by the grand jury, and the error was not harmless. The quantity of drugs is an essential element of the offense if that fact exposes the defendant to a hightened maximum sentence under § 841(b)(1)(A) or (B). Jones did not challenge the sufficiency of the indictment itself, but only the validity of his sentence. The government asserts and Jones does not deny that the indictment indisputably stated an offense under 21 U.S.C. § 841(a). It is the sentence that was erroneous because it exceeded the statutory maximum for the offenses alleged in the indictment. Each of the two concurrent terms of imprisonment was erroneously imposed.

(2) Jones' claim is not reviewed under the plain error standard because he had objected to the presentence report and at his sentencing hearing that the sentence exceeded the statutory maximum permitted by the indictment. The claim was properly preserved.

(3) The goverhment urges that the 30 year sentnce did not prejudice Jones because it falls well below the upper limit of 40 years imprisonment -- 20 years on each count to run consecutively. The government urges that the 360 months could be achieved by imposing consecutive terms of 10 and 20 years or partially concurrent 20 year terms. However, in Apprendi the Supreme Court rejected a similar argument. The circuit stated it was concerned with the legality of the sentences actually imposed, regardeless of whether in the aggragate they are less severe than the sentences that could have been imposed. The case was remanded for resentencing.