United States v. Guzman, 02-3070 (February 7, 2003)

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

Pursuant to a plea agreement, Guzman pleaded guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana and was sentenced to 80 months confinement. On appeal he claims the government breached the plea agreement by making recommendations to the court that were contrary to its promises. The government claims Guzman breached the agreement before it made the disputed recommendations. Guzman argues the district court erroneously imposed an obstruction of justice enhancement. The Tenth Circuit found the district court erred in handling both aspects of sentencing and vacated the sentence and remanded.

Pursuant to the agreement, the government had debriefed Guzman on the same day he signed the agreement. According to the government, Guzman minimized the amount of marijuana with which he was involved. Nevertheless, between his plea and January 7, 2002, Guzman provided government agents with various pieces of information, none of which led to any arrests. On January 6, Guzman told a local police officer that a government investigator had asked Guzman to plant drugs in the residence of a suspect. The police officer told the government investigator about Guzman's allegations and all corporations seized.

A presentence report was prepared. Although Guzman did not plead guilty to the obstruction of justice count based on an alleged intimidation incident, the probation officer took this into account and added two points for obstruction of justice under §3C1.1. Guzman objected, denying the incident ever occurred. The government agreed with the PSR description of the incident but added that the government was bound by the plea agreement which required it to oppose an obstruction of justice adjustment.

Four days before sentencing, Guzman filed a motion to compel the government to file a §5K1.1 substantial assistance motion. The government responded that it did not file the motion because Guzman was dishonest in his debriefing and had been uncooperative. The government said Guzman made his drug planting allegation only after he was told he had violated the plea agreement by refusing to cooperate. In a subsequent pleading the government argued that given Guzman's breach of the plea agreement, he should not receive a reduction for acceptance of responsibility, should receive the obstruction of justice enhancement, and should receive a sentence at the upper end of the guideline range. The government specifically recommended a sentence of 121 months, the highest possible sentence consistent with the government's recommendations.

Defense counsel requested a continuance of the sentencing hearing based on the government's responses, which the court denied. The court proceeded to hear evidence on objections and on the government's motion. The government called three witnesses who denied the drug planting allegations, and presented no evidence regarding the alleged intimidation incident. Guzman testified. The district court granted Guzman a three-point acceptance of responsibility adjustment and sentenced him to 80 months imprisonment. The court imposed a two-point obstruction of justice enhancement based on the intimidation incident. The court observed that Guzman gave what largely appeared to be truthful information during the debriefing and that his information was correct. The court denied Guzman's motion to compel the government to file a §5K1.1 motion. Guzman did not object in the district court that the government had breached the plea agreement.

HELD: (1) The waiver provision may be unenforceable if the government breaches the terms of the plea agreement. Therefore, despite the waiver provision in the plea agreement, the court had to turn to the merits of the issue of breach.

(2) Whether a plea agreement has been violated is a question of law reviewed de novo. General principles of contract law define the government's obligations. The court considers the nature of the promise, and evaluates that promise in the light of the defendant's reasonable understanding of the promise at the time of the plea. The government did not perform several of its commitments, but claims Guzman had previously breached the plea agreement. If the pleadings reveal a factual dispute on the issue of breach, the district court must hold a hearing to resolve the factual issues. The government may not unilaterally declare a breach. A court must hold a hearing and make a finding before the government is released from its obligations under the agreement. The government argues that the district court's findings were the equivalent to a determination that Guzman breached the agreement. However, the circuit found that the district court did not make a determination that Guzman's allegations about drug planting constituted obstruction of justice in violation of the plea agreement. The district court did impose an obstruction of justice adjustment, not on the false drug planting statement, but because of the alleged intimidation incident. Nonetheless, the district court granted the acceptance of responsibility adjustment. The government also argued that Guzman breached the plea agreement by failing to cooperate, but Guzman's continuing cooperation was a precondition only for the filing of a §5K1.1 motion and not for the government's other promises under the agreement. The district court erred by entertaining the government's recommendations without holding a hearing and making a determination as to whether the plea agreement had been breached by either Guzman or the government.

(3) The court reviews the district court's fact findings as to the obstruction of justice enhancement for clear error and reviews de novo the court's interpretation of the guidelines. Guzman contends that imposition of an obstruction of justice enhancement was erroneous because the court relied solely on hearsay statements and representations about police reports described second hand in the PSR. The government did not present any live witness or documentary evidence. The court stated that it would adopt the probation officer's report with regard to the obstruction of justice enhancement. In its written memorandum the district court again indicated its reliance on the PSR credibility assessments. Under §6A1.3(b), the district court is to resolve disputed sentencing factors in accordance with Rule 32(c)(1). That rule requires the district court to make a finding as to disputed matters that will affect the sentence. This circuit has repeatedly held that a district court may not satisfy its obligation under the rule by simply adopting the PSR as its finding, therefore, imposition of the §3C1.1 enhancement was error.

United States v. Anderson, 01-4260 (February 10, 2003)

Anderson appeals his conviction for tax evasion in violation of 26 U.S.C. § 7201. The circuit held that in tax evasion cases, where the defendant commits acts of evasion after incurring a tax liability, the statute of limitations begins to run on the date of the last affirmative act of evasion.

HELD: (1) In order to prove a defendant guilty of tax evasion, the government must show a substantial tax liability, willfulness, and an affirmative act constituting evasion or attempted evasion. The statute of limitations is six years. The court reviews the interpretation of the statute of limitations de novo. A number of circuits have concluded that when a defendant commits a series of evasive acts over several years after incurring a tax liability, the statute of limitations begins to run on the date of the last evasive act. The court expressly adopted that rule. This holding is consistent with prior circuit precedent.

(2) The court reviews the district court decision to disqualify counsel for an abuse of discretion, under circumstances. But where a defendant's Sixth Amendment right to counsel is implicated, and when the district court's decision is premised not on in court conduct but on the interpretation of ethical norms as applied to undisputed facts, review is de novo. The government moved to disqualify Anderson's trial counsel under Utah Rules of Professional Conduct that "A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness." The district court agreed that disqualification was appropriate in this case because of counsel's personal involvement. The district court was correct that counsel would likely be called as a witness, and thus, counsel's continued representation would threaten the integrity of the proceedings.

United States v. Espinosa-Talamantes, 02-2065 (February 12, 2003)

Espinosa is a federal prisoner appearing pro se, appealing the denial of his motion to modify his term of imprisonment under 18 U.S.C. § 3582(c)(2). The defendant failed to file his notice of appeal with the ten day period of Rule 4(b). But because he filed a notice of appeal within the 30 day extension. Provided by Rule 4(b)(4), the court remanded to the district court for the limited purpose of determining whether excusable neglect or good cause exists for the untimely filing of defendant's notice of appeal.

HELD: (1) A timely notice of appeal is both mandatory and jurisdictional. A § 3582(c)(2) motion is a civil proceeding. Several circuits concluded the 10 day period applies because the § 3582(c)(2) motion is a continuation of the prior criminal proceeding. The circuit agreed.

(2) Defendant filed his notice of appeal more than 10 days after the district court's order. Under Rule 4(b)(4), a district court may extend the period for an additional 30 days upon a finding of excusable neglect or good cause. Although the defendant did not file such motion, this court has held that a defendant who filed his notice of appeal within the Rule 4(b) 30 day extension period may obtain relief by showing excusable neglect notwithstanding his failure to file a motion seeking such relief within that same time period. In most cases, the appropriate remedy is to remand the case to the district court, so that the court can determine if the requisite showing for a 30 day extension of time can be made. In 1998, Rule 4(b) was amended and the rule now provides for a 30 day extension upon a finding of excusable neglect or good cause. The court remanded for the limited purpose of the district court determining whether the defendant can establish excusable neglect or good cause. The appeal remains lodged on the docket of the court.

United States v. Cavely, 01-5165 (February 4, 2003)

Cavely was charged with conspiracy and substantive methamphetamine and firearm offenses. He was sentenced to 440 months imprisonment.

HELD: (1) The court accepts the district court's fact findings unless clearly erroneous. Determination of witness credibility are also subject to review under this standard, as is the finding that consent was voluntary. The consent issue was decided by the district court based on witness credibility and the determination was not clearly erroneous. Officers went to appellant's residence to execute a search warrant. They encountered Massey at the residence. They staked out Massey and Cavely's jointly-owned warehouse. Appellant was known to be in the warehouse. An officer testified that Massey consented to the search of the warehouse and signed a written form.

(2) A second incident occurred in which officers were looking for a woman for whom they had an arrest warrant. They knew the woman was a girlfriend of a former associate of the appellant but otherwise had no reason to believe she would be at his residence. They smelled a chemical odor associated with a meth lab. They knew a search warrant involving meth had been previously executed at the residence. An officer approaching the back of the house saw a man standing near the open door of a detached garage. The man went into the house. Looking through the open door, the officer could see items associated with methamphetamine manufacture. The officers knocked on the front door. No one answered. They obtained a search warrant and found methamphetamine manufacturing in the house. Appellants focused on whether or not police had reasonable grounds to believe the woman in the arrest warrant was at the residence. Once on the property, the personal observations of the officers was sufficient to establish probable cause for the warrant. Absent exigent circumstances or consent, officers may not legally search for the subject of an arrest warrant in the home of the third party without first obtaining a search warrant. The same applies to search of the curtilage of the home. Therefore, the issue is not whether officers had reason to believe the woman might be at appellant's house. The issue is whether their entry upon appellant's property and their observations constituted a search. The protections of the Fourth Amendment may extend beyond the home itself. The curtilage of a house is protected by the Fourth Amendment. Appellant made no showing that he possessed a legitimate expectation of privacy that was violated by the officers actions. The burden of establishing a legitimate expectation of privacy is on the party claiming a Fourth Amendment violation. Absent a showing that the officers' entries violated a reasonable expectation of privacy, their actions did not amount to a search.

(3) The third search occurred when officers when to appellant's house to arrest him. They had a warrant for arrest based on methamphetamine previously found at the house. Two officers when to the front, two to the back. Officers knocked but no one answered. One of the officers in the back saw appellant walked toward the detached garage carrying a product sometimes used to manufacture meth. The officers arrested appellant on the driveway, found $4,000 in cash and a quantity of methamphetamine. He told them he had a friend inside and if they "hollered", the friends would come out. Officers entered the house through the back door and announced that their presence but received no response. They could smell the odor associated with manufacture of meth. They found a man in a living room. They went briefly through each room to see if anyone else were present. They were in the house for 90 seconds and then obtained a search warrant and the incriminating items were seized at that time. The officers said they conducted the sweep out of concern for their safety and based on consent. The district court rejected consent but found the sweep was justified by safety concerns. A protective sweep is a quick and limited search of premises incident to an arrest, limited to a cursory visual inspection. It is permissible if the officers had a reasonable belief based on specific and articulable facts which warranted the officer in believing the area swept harbored an individual posing a danger to the officer or others. The circuit held that the officers' entry and cursory visual search of the residence was reasonable.

(4) Appellant argues the court erred by denying his motion for mistrial after a police officer with specialized training on meth labs testified that certain items recovered from his auto repair shop contained methamphetamine residue. The district court twice sustained objections to such statements on the grounds the officer was not a chemist. Appellant contends the mistrial should have been granted because the witness improperly injected prejudicial evidentiary harpoons into the trial. An evidentiary harpoon is an attempt by a government witness to deliberately offer inadmissible testimony for the purpose of prejudicing the defendant. A court may appropriately grant a mistrial only when a defendant's right to a fair and impartial trial has been impaired, a decision the court reviews for abuse of discretion. The district court gave an appropriate timely and clear instruction why the jury should disregard the witnesses' unsupported identification of the substance. This was sufficient to protect against unfair prejudice, and in view of overwhelming evidence, appellant's right to fair trial was not affected.

(5) Appellant next claims the district court erred by permitting the government to have an expert give an estimate of the amount of meth that could have been produced by the four meth labs found by police in this case. The district court had held the Daubert hearing. After reviewing the record, the court could not say the district court abused its discretion.

(6) Appellant argues the evidence is insufficient on a 924(c) charge, and urges that the instruction constructively amended the indictment. Count four charged a specific semi-automatic assault weapon in furtherance of the drug crimes in counts one and three. Appellant claims there was no evidence to show he possessed this particular firearm. It was found during a search of the warehouse in an area leased to Massey. The test for reviewing sufficiency is whether, viewed in the light most favorable to the prosecution, any rational juror could have found the essential elements of the offense beyond a reasonable doubt. Under this standard, a rational jury could have found that appellant constructively possessed the firearm.

(7) The district court instructed the jury the government only had to show that appellant possessed a firearm and not necessarily for the firearm charged in count four. The evidence showed he possessed numerous firearms during the period covered by the indictment. A constructive amendment occurs when the terms of the indictment are in affect altered by the presentation of evidence and jury instructions would so modify essential elements of the offense charged that there is substantial likelihood the defendant may have been convicted of an offense other than that charged in the indictment. Appellant did not object to the instructions so review is for plain error. the jury sent a note to the judge asking precisely the question at issue and the court told the jury they could only consider the particular gun. The answer to the jury's question cured any error.

(8) The government's expert testified that the gun would not fire initially because it had been assembled improperly but, after a short reassembly, could be fired in semi-automatic fashion. Under this testimony, the jury could properly find the weapon was a firearm within the definition of firearm. The determination of whether a firearm is a prohibited assault weapon is a sentencing factor and not an essential element.

(9) The district court did not abuse its discretion in admitting testimony that when appellant was arrested, police found drugs, a firearm and a bullet-proof vest.

(10) A witness named Bilyeu testified. The court questioned the government whether he was tied to the conspiracy of the indictment or whether he was in a separate conspiracy with appellant. The government decided not to call a witness who could have tie in Bilyeu. The judge told the jury that Bilyeu's testimony concerned a separate and distinct situation and instructed the jury to disregard the testimony. The circuit held that the instruction was sufficient to prevent any unfair prejudice.

(11) Appellant raised a Singleton issue which had been reversed en banc.

(12) As to the calculation of amount of methamphetamine as a sentencing argument, this was essentially a repeat of the earlier claim.

(13) Role-in-offense is a fact determination reviewed under the clear error standard.

United States v. Haney, 00-1421 (February 4, 2003)

(David Lane, Denver, Colorado)

Haney was charged with attempted escape from prison and possession of escape paraphernalia. He was acquitted of escape but convicted of possession. On appeal, the panel reversed his conviction finding the district court erred in not permitting a duress defense by a third person. The circuit granted rehearing en banc. After carefully reviewing the record, the court found Haney did not raise a direct defense to the charge of possession of escape paraphernalia. But even if he did, his objection to the lack of a duress defense was based upon his actions as an aider and abetter. The jury responded on a special verdict form that Haney was convicted of a principle only.

HELD: (1) A defendant is entitled to an instruction on a theory of the defense. Under Rule 30 no party may assign error to the instructions unless the party objects before the jury retires to consider its verdict. A request for an instruction before the jury retires for deliberations is insufficient to preserve an objection to the actual instructions. Haney's only objection was on the basis that he should receive a duress instruction only in response to a theory that he aided and abetted his co-defendant's attempted escape. The court said that only by piling inference on inference could it conclude that Haney sought to assert a duress defense as to possession of escape paraphernalia charge. The duress defense was limited to the extent that a jury might find he aided and abetted his co-defendant. The defense was couched in terms of Haney aiding and abetting the co-defendants. Later Haney moved to assert the defense to the charges pending against him. At a hearing, Haney argued he was entitled to the duress defense based on the attempted escape charge. Counsel said that Haney could not have a duress defense as to his own alleged escape. The government said it did not intend to rely on an aid and abet theory so the district court characterized the duress defense as a non-issue. Thus, Haney's duress defense was directed at the attempted escape charge, only insofar as the jury might convict him on aiding and abetting. Haney's co-defendant received the duress instruction on both charges. The circuit was not persuaded that the court was aware that Haney sought a duress defense on the possession of escape paraphernalia charge.

(2) The government urged that the jury could be instructed on aiding and abetting even though the indictment did not charge Haney with violating 18 U.S.C. § 2. On the special verdict form the jury found Haney guilty of possession of escape paraphernalia as a principle only.

(3) The district court's failure to instruct was harmless given the jury's decision that he was not criminally responsible on an aiding and abetting theory. Haney was not entitled to assert a duress defense and receive a duress instruction based upon his actions as a principle. The state of the law concerning third party duress in the prison context lacks the type of clarity that would have required a district court to instruct sua sponte. The Supreme Court has not decided whether a non-threatened inmate can claim duress.

United States v. Hathaway, (February , 2003)

(Michael Lewis Harris, FPD, Kansas City, Kansas)

Hathaway was convicted of forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a) and sentenced to two years probation including four months home confinement. The indictment charged him with a misdemeanor violation of § 111 involving simple assault, but he was convicted of the felony. The indictment and jury instructions fail to distinguish between simple and non-simple assault. The indictment charged used the language of "forcible assault." But appended to the indictment was a page that had penalties of not more than three years. The court's instruction said that Hathaway could be imprisoned for not more than one year where the acts constituted only simply assault, and in all other cases, not more than three years. The court instructed on forcible assault. There was no objection. The PSR characterized the conviction as a felony. Hathaway objected claiming the indictment and instructions charged only a misdemeanor. Hathaway argued that § 111 prohibits two different offenses. But the district court sentenced him on the basis of a felony conviction.

HELD: (1) The court had to decide if a conviction for an "all other cases" felony requires an additional element - - conduct constituting more than simple assault, beyond that required for a misdemeanor conviction. This in turn depends on whether the fact of the existence of a non-simple assault for a felony charge is properly viewed as an element or a sentencing factor. In § 11(b), the term "bodily injury", this Court held it is just a sentencing factor. Although the court is bound by prior panel decisions, a superseding contrary decision by the Supreme Court will control. The Supreme Court Jones decision and subsequent cases alter the proper analysis and this court's earlier decision does not control the § 111(a) issue. In Jones the Court relied on the text and structure of the carjacking statute, comparable federal and state statutes, and legislative history. In addition, Apprendi announced a constitutional principle. Therefore § 111 defines three separate offenses, each element of which must be charged in the indictment and proven beyond a reasonable doubt. Though the language and structure of § 111 might suggest the opposite, Jones makes it clear that such considerations are not dispositive.

(2) Section 111 does not define simple assault. In that situation the general practice is to give the term its common-law meaning - - an attempted battery or as placing another in reasonable apprehension of immediate bodily harm. Other circuits have given weight at the separate offenses in § 111 and the Tenth Circuit agreed holding that a simple assault is one that does not involve actual physical context, a deadly or dangerous weapon, bodily injury, or intent to commit murder or any felonies. Other than those referred to in § 113(a)(2) simple assault is defined by the common-law meaning and the meaning of simple assault in § 113. Therefore "all other cases" assault refers to any assault that is neither simple nor an assault that is defined in § 111(b). Having determined that either actual physical contact or intent to commit murder or any felony other than those referred to in § 113(a)(2) is a required element of a felony under § 111(a), Hathaway's actual sentence was not in excess of the maximum statutory penalty for misdemeanor. Nonetheless, Hathaway is prejudice by the collateral consequences that are attached to a felony conviction as opposed to a misdemeanor conviction including loss of right to vote, right to hold public office, right to sit on a jury, right to possess a firearm. Although the indictment partially quoted the statute it failed to include an essential element of a felony charge and thus charged only a misdemeanor offense. Thus the indictment charged an offense different from that for which he was sentenced.

(3) Review is de novo. An indictment is sufficient if it sets forth the elements charged, gives the defendant fair notice, and protects against double jeopardy. The indictment failed to allege a required an essential element of the felony of which Hathaway was convicted. Hathaway raised the indictment issue after the verdict but prior to sentencing. A defendant cannot waive his right to challenge an indictment based upon its failure to charge an offense. This court has applied a liberal construction rule when reviewing post-verdict challenges to an indictment asserting the absence of an element. Hathaway challenged the indictment immediately upon learning he was to be sentenced as if convicted of a felony. The indictment here suffers from much more than a technical deficiency. A defendant convicted for a different offense than that charged in the indictment undoubtedly suffers prejudice required under Prentiss. The indictment was sufficient to allege a misdemeanor simple assault. Hathaway does not claim he was not validly convicted of that. The court remanded for the district court to correct all of Hathaway's records to reflect a misdemeanor violation.

United States v. Evans, 01-3345 (February 6, 2003)

(Melody Evans, FPD Topeka, Kansas)

Evans was convicted of counts relating to methamphetamine manufacture and was sentenced to 135 months imprisonment.

HELD: (1) Evans was convicted of 21 U.S.C. § 858 which prohibits creating a substantial risk of harm to human life while manufacturing or attempting to manufacture a controlled dangerous substance. The constitutionality of the statute is a legal question reviewed de novo. Evans claims the statute is unconstitutionally vague. A statute must clearly define the conduct that it prohibits. Laws must give the person of ordinary intelligence a reasonable opportunity to know it is prohibited. A vague law impermissibly delegates basic policy matters to police, judges and juries for resolution on an ad hock basis, with the attendant dangers of arbitrary and discriminatory application. A vagueness challenge cannot be aimed at the statute on its face but must be limited to the application to the particular conduct charged, unless the statute implicates First Amendment values. The district court significantly limited the scope of § 858's "substantial risk to human life" provision in terms of limiting evidence and instructing the jury. In addition, the arguments of defense and government counsel do not eviance any lack of clarity about key statutory terms. Other circuits have rejected vagueness challenges to similar terms. A mens rea element may militate against a finding of vagueness. Often the Supreme Court has held that a statute gives fair warning because scienter is an element of the offense. But here, lack of a mens rea element does not render the statute unduly vague.

(2) In determining whether the evidence was sufficient to support a § 858 conviction, the court views the evidence in the light most favorable to the government and asks whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The evidence was sufficient.

(3) The district court's determination of the sentence was based on grouping rules under §3D1.2. Even though count of conviction involve the same harm, two guidelines applied - both §2D1.1, the drug quantity table and §2D1.10. The district court applied §2D1.1 to all counts except the § 858 conviction which establishes an offense level of three plus the offense level from §2D1.1. The §2D1.1 level was 32. Then the court applied §3D1.3(b) to determine which offense level should be applied to the entire group. That guideline provides that when the counts involve offenses of the same general type to which the guidelines apply, apply the offense guideline that produces the highest offense level. Therefore the district court applied §2D1.10 guideline. Evans urges that 35 is not the appropriate offense level because § 858 has a statutory maximum sentence of 10 years, and relies on a Ninth Circuit case. The Eighth Circuit rejected the Ninth Circuit's reasoning and the Tenth Circuit agreed with the Eighth Circuit.

(4) When a defendant is sentenced on multiple counts, the statutory maximum for any one count does not cap the total punishment.

(5) Review of challenges to evidence of proper venue is quite deferential. There was no testimony as to specific locations. The government argued there was sufficient circumstantial evidence of venue in Kansas. The circuit held that the evidence was insufficient to establish that the trailer was in the District of Kansas. The district court appeared to apply a presumption that law enforcement officers of a particular jurisdiction act within that jurisdiction. In most cases that is true. This circuit has rejected government attempts to rely on presumptions to establish proper venue. The court remanded to the district court to vacate convictions on six and seven due to insufficient evidence that the offenses occurred in the District of Kansas.

Ledbetter v. City of Topeka, Kansas, 02-3202 (February 6, 2003)

Ledbetter filed a civil rights action claiming that certain officials violated his Fourth Amendment rights for arresting him on an invalid warrant and unlawfully searching his back yard. He also makes other constitutional claims. The district court dismissed.

HELD: (1) Because Ledbetter proceeds pro se, the circuit would construe his pleadings liberally.

(2) The court reviews for abuse of discretion dismissal based on lack of timely service. The court reviews de novo the district court's grant of individual defendants' motions to dismiss. A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court reviews de novo the grant of summary judgment.

(3) Dismissal of certain defendants was appropriate where Ledbetter failed to obtain proper service.

(4) Under § 1983, a defendant may not be held liable under a theory of respondeat seperior. The complaint fails to allege necessary conduct by the Mayor or City Attorney.

(5) The circuit agrees with the district court's dismissal of the First Amendment Retaliation Claim. And similarly, Ledbetter's cruel and unusual punishment allegation lack the necessary specificity.

(6) Due process requires the City to provide a pretrial detainee' humane conditions of confinement. To establish a claim, it must be shown that officials knew of and disregarded an excessive risk to health and safety and that the alleged depravation was sufficiently serious.

(7) A judicial officer is entitled to absolute immunity from claims under § 1983 unless he acted in the clear absence of all jurisdiction.

(8) Under § 1983, a municipality may not be held liable on a theory of respondeat seperior. Municipal judges do not act as policy makers and cannot render a city liable for a constitutional violation under § 1983.

Morris v. Burnett, 01-1248 (February 19, 2003)

(Howard A. Pincus, FPD, Denver, Colorado)

The district court granted the habeas petition, ruling that the state court violated Morris' constitutional right to present a Cogent defense during his trial for sexual assault on a child. The sexual assault charge arose out of the accusation of a 12-year old boy that Morris had fondled him. The first trial ended in a hung jury. He was convicted on retrial. The state court had excluded the doctor's testimony as an expression of an opinion of the credibility of the victim. Morris did not rebut by clear and convincing evidence that presumed correctness of that finding. Further, Morris' due process right to present a defense was not violated by exclusion of the testimony. The state court did not unreasonably apply federal law in holding that Morris' right to confrontation was not violated by the restrictions during the detective's cross-examination.

HELD: (1) The revised standard of review in the AEDPA applies. When a state court addresses the great bulk of issues raised by petitioner's briefs but omits to a just particular claim, the circuit has inferred that the claim was not decided on the merits in the state court and did not apply deferential review with respect to that claim. Otherwise state court fact finders are presumed correct unless rebutted by clear and convincing evidence. As to review of the federal district court decision, the fact findings are reviewed under the clearly erroneous standard and legal conclusions are reviewed de novo. Where the district court's findings are based on a review of a state record, the circuit conducts an independent review. Only errors of federal law are cognizable under § 2254. Morris argues that his confrontation rights were violated by restrictions on the cross-examination of Detective Betz and that those restrictions exacerbated the prejudice from exclusion of the doctor's testimony. To grant relief on a confrontation claim, the circuit has to find that the state court's affirmants of the limitations on cross-examination either involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts. The court could not so find. The constitutional right to cross-examine is not unlimited. Questions to which objections were sustained did not relate to the adequacy of the detective's training but were intended to illicit his opinion regarding potential weaknesses in child sexual abuse cases in general. Defense counsel made no effort to convince the court that Detective Betz possessed the requisite expertise to answer the questions. Questions regarding omissions in the investigation were only marginally relevant because Betz had already admitted his very limited investigation. The judge sustained to questions regarding investigative guides. The apparent purpose of this line of questioning was to emphasize the point that Betz had done virtually nothing to check the victim's story. The Colorado courts' ruling did not involve an unreasonable application of clearly established federal law nor was it based on an unreasonable determination of the facts.

(2) The district court ruled that the state court, by excluding the doctor's testimony, had violated petitioner's right to present a cogent defense. The district court held this exclusion resulted from the state courts' unreasonable determination of the facts in light of evidence received and excluded at the trial. The circuit reviewed pertinent Supreme Court Sixth Amendment cases that dealt with factual testimony. The recent decision in Scheffer addresses opinion evidence and held that exclusion of polygraph evidence did not violate the accused's constitutional right to present a defense. The Court held that excluding polygraph evidence is a rational and proportional means of advancing the legitimate interest in barring unreliable evidence. The Court distinguished Rock Washington, and Chambers in that the exclusions of evidence declared unconstitutional in those cases significantly undermined fundamental elements of the defendant's defense. In Washington, the state had denied the defendant the right to put on the stand a witness who could testify to events he had personally observed. In Rock, the rule barring hypnotically refreshed recollection deprived the jury of the testimony of the only witness who was at the scene and had first hand knowledge of the facts infringed on the interest of the defendant in testifying in her own defense. And Chambers, was confined to the specific facts and circumstances presented in the case. Scheffer, held that Rule 707 does not implicate any significant interest of the accused, and excluding polygraph evidence did not keep the defendant from introducing any factual evidence but prevented him only from introducing expert opinion testimony to bolster his own credibility.

(3) The circuit focused on the nature of the doctor's testimony. Juries are not instructed to acquit the defendant if the government's investigation was superficial. For an investigative ____ to be relevant, there must be some specific reason why it raises doubt about the defendant's guilty. It is not apparent why it would be relevant whether the police filed charges without first conducting a thorough investigation. When petitioner complains about not being able to put on evidence that the investigation was improperly conducted he must explain the relevance of the proffered-but-excluded evidence. It was not enough for the doctor to state she would testify that the investigation was not conducted in accordance with widely accepted standards. The judge interpreted the purposes of the doctor's testimony as being to show that the victim was not telling the truth and this is not a matter for expert opinion. The trial court's view of the proffer is entitled to great deference. There was ample support in the record for the trial court's decision. The trial court's characterization of the purpose of the doctor's testimony was a factual determination. Characterizing the doctor's testimony is an expert opinion ended the inquiry under Colorado law but a state evidentiary rule must sometimes yield to the Constitutional right to present a defense. Scheffer is closely in point. The Court did not hold that Rules of Evidence could always bar expert opinion on veracity. The majority opinion was that exclusion of polygraph testimony was constitutional permissible because it did not implicate any significant interest of the accused and reliability of the evidence was questionable. The significant interest of concern is the right to put on factual evidence. All Scheffer was precluded from presenting was expert opinion testimony to bolster his own credibility. Under the meaning of "significant interest" the circuit doubted that any significant interest of petitioner was implicated by exclusion of the doctor's testimony. In addition, the significance factor must be weighed against the second factor - reliability of evidence. The record reveals no scientific support for the proposition that the doctor's techniques for evaluating the validity of an accusation of child sexual abuse provides superior results to those of an informed jury. Therefore, exclusion of the doctor's testimony did not deny petitioner's constitutional right to present a defense.

(4) Relief can only be granted under § 2254 for violations of federal law, not state law unless the state law decision unfairly prevented a defendant from presenting evidence critical to his defense. The circuit found no depravation of due process arising from a change in judicial interpretation of Colorado Rules of Evidence, and rejected the claim that Colorado had applied its Rules of Evidence unfairly. Therefore, the circuit reversed the district court's grant of habeas relief.

United States v. Norris, 02-3047 (February 19, 2003)

(Charles D. Dedmon, FPD, Kansas City, Kansas)

Norris plead guilty to possession of a firearm by a convicted felon. His indictment was predicated upon two prior state court theft convictions. He filed a motion to dismiss the indictment on the ground that the two convictions were not for crimes punishable by more than one year. The maximum sentences were seven and nine months respectively, and because the Kansas Supreme Court had held unconstitutional the portion of the Kansas sentencing guidelines authorizing upward departures, his prior convictions were not qualifying convictions. The district court denied the motion holding that the Kansas decision in Gould was not to be retroactive beyond June 26, 2000. In his guilty plea Norris reserved his right to appeal the district court's ruling.

HELD: (1) At the time of his convictions, Kansas law permitted the upward departures, so even though he was not sentenced to more than one year his convictions were nonetheless punishable by terms exceeding one year.

(2) In Gould, the Kansas court held that its scheme for imposing upward departures violated constitutional rights as per Apprendi. The court held the opinion had no retroactive application to cases filed as of June 26, 2000, the date Apprendi was decided. Both of Norris' prior convictions were final by September 1999. Therefore Gould, does not foreclose a conclusion that the two 1999 offenses were punishable by terms of imprisonment exceeding one year under Kansas law.

(3) Gould did not simply interpret relevant statutory provisions to clarify that departures were not within the power of the trial court but instead held the statute unconstitutional on its face. Because the court was not presented with a situation where the State Supreme Court merely clarified a statute by defining a key term, the circuit did not need to apply the decision in Gould to all § 922(g) cases arising after that opinion on the ground that the state decision defined a term which the federal courts must follow. It makes no difference that had the crimes been committed after Apprendi, the underlying offenses would not have been punishable by more than one year under Gould what matters is that under the law of the jurisdiction at the time, Norris had committed felonies.

(4) The district court added four levels for possession of a firearm in connection with another felony offense. The court reviews fact-findings related to sentence enhancements under the clearly erroneous standard and reviews de novo questions of law. Section 2K2.1(b)(5) defines the felony offense, and to justify the enhancement the government must prove by a preponderance that the defendant used the firearm in connection with another felony. When a defendant properly objects to a statement in a PSR, unsworn out of court statements made by an unobserved witness and unsupported by other evidence warrant an insufficient predicate for a sentence enhancement under §2K2.1(b)(5). But in this case the government placed into evidence part of Norris' plea agreement indicating that a woman who was the passenger in his car had said that Norris had fired the gun at an individual who ran behind his residence. At sentencing counsel said that Norris had fired a gun but not at anyone. Counsel did not present any evidence supporting his position. The court specifically commented on the reliability of the witness' unrebutted statement. The court said it had no reason not to believe the statement and there is no evidence to the contrary.

(5) In addition the four level enhancement did not constitute plain error on the theory raised on appeal that the witness' statement did not establish the elements of aggravated assault.

(6) Norris had ten criminal history points for a criminal history category of V. Under §4A1.2(k)(1), in the case of a prior revocation of probation, had the original term any term of imprisonment and posted upon revocation. This resulted in adjusted terms of six and eight months imprisonment. The PSR assessed two points for each conviction under §4A1.1(b). Norris urges that he should have been assessed only three rather than four criminal history points because of application note 11. The district court held the PSR calculation was correct because the state court did not impose one term of imprisonment as a result of the revocation of probation. First there must be a single revocation of probation that applies to multiple sentences. Second, multiple sentences must be counted separately under §4A1.2(a)(2), that is, they must have been imposed in unrelated cases. Third, the revoking court must have imposed only one term of imprisonment upon revocation of the probationary sentences. Although the record reveals both sentences of probation were revoked on the same day it does not indicate whether the state court revoked both sentences via a single revocation or instead intended to treat each sentence separately. Tisdale (plain error review). The court refused to follow the Sixth Circuit decision in Streat.