Petrick v. Martin, 99-6399 (January 3, 2001)
This is an appeal from denial of a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The petition was dismissed as untimely. The timeliness of the petition depends on whether his first federal habeas petition, part of which was dismissed without prejudice, tolled the running of the statute of limitations. The circuit held that a federal habeas petition does toll the limitations period and therefore reversed and remanded for further proceedings.
Petrick was convicted of second degree murder. His convictions were affirmed. In 1992 he filed a first federal habeas corpus petition. Later he tried to supplement the petition with other claims. The district court dismissed the original claim as without merit and dismissed the supplemental claims without prejudice for filing a separate action. In his appeal, the circuit denied his request for a certificate of appealability because he had not made a substantial showing of denial of a constitutional right. The appeal was denied in January 1997. In March 1998 he filed for state post conviction relief to exhaust certain claims. He filed his second habeas petition on July 15, 1998.
Under the AEDPA, because Petrick's convictions became final prior to passes of the Act he had one year from April 24, 1996 in which to file his habeas petition. The district court held that because no state post-conviction proceedings were filed within the year, the limitations period expired on April 23, 1997. Petrick argues that the one year limitation period was tolled from April 24, 1996 to May 12, 1997 while the first federal petition was pending and again from March 2, 1998 to June 26, 1998 until the denial of state post conviction relief was affirmed on appeal.
HELD: (1) The tolling provision under § 2254(d)(2) provides that the time during which a properly filed application for state post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. The question is whether "other collateral review" includes federal habeas review. The circuits have been split, some concluding that the word "state" modifies "other collateral review" and therefore excludes federal habeas review from the tolling provision. Other circuits have held that state modifies only "post conviction" and that "other collateral review" includes federal habeas review. That is the Second Circuit's view. The Tenth Circuit agreed with the Second Circuit and also noted that the phrase "other collateral review" would be virtually meaningless if it were read to include only state remedies other than state post conviction review. The statute is ambiguous so it is up to the court to come up was a reasonable interpretation in light of what it believes to be Congress' intent. In the capitol case provisions of the AEDPA "other collateral relief" included only state remedies. Where Congress includes particular language in one section of the statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. The circuit's view that "other collateral review" includes federal habeas petitions is also supported by the relationship between exhaustion requirements and the tolling provisions. The circuit also sought its interpretation was consistent with the view that when a habeas petitioner returns to federal court following exhaustion of his or her claims in state court, the second petition is not barred as successive. The circuit's interpretation did not detract from the overall purpose of the AEDPA to avoid delay.
Battenfield v. Gibson, 99-7096 (January 3, 2001)
Battenfield was convicted of first degree murder and sentenced to death. He appeals the denial of his § 2254 petition for writ of habeas corpus. The circuit reversed and remanded as to the death sentence.
HELD: (1) The AEDPA applies and its standard of review.
(2) Under Witherspoon a state infringes a capital defendant's right under the Sixth and Fourteenth Amendments to trial by an impartial jury when it excuses for cause all those members of the venire who expressed consciences objections to capital punishment. In Wainwright v. Witt, the Supreme Court also recognized a states legitimate interest in excluding jurors whose opposition to capital punishment would not allow them to view the proceedings impartially and how might frustrate the administration of a state's death penalty scheme. Balancing these interests, a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with instructions and his oath. The trial courts finding of bias is entitled to a presumption of correctness. The trial court's first and last questions to the juror were inconsistent with the standard announced in Witt but the second question provided a sufficient basis for the finding that Elliott was biased. Battenfield has failed to rebut the presumption that the trial court was correct.
(2) It is improper for a prosecutor to comment on a defendant's decision to refrain from testifying at trail. If a prosecutor's remarks concerned matters that could have been explained only by the accused, they give rise to the innuendo that matters were not explained because the petitioner did not testify. A prosecutor however is otherwise free to comment on the failure to call certain witnesses. The prosecutor's second stage comment is more problematic. The first stage comments were aimed at the failure to present evidence on a particular issue. However the closing stage comment concerned matters that could have been explained only by Battenfield. However, the OCCA did not unreasonably apply the harmless error standard to the comment.
(3) Ineffective assistance of counsel based on deficient performance and prejudice. The obligation to conduct reasonable investigation extends to the sentencing phase. The question is whether the OCCA reasonably applied Strickland in rejecting the ineffective assistance of counsel claim. The circuit held that the attorney's penalty phase preparation was constitutionally deficient. The attorney failed to interview anyone including Battenfield himself regarding possible mitigation. The failure to conduct an adequate investigation hampered his ability to make strategic decisions regarding the penalty phase. The deficient performance culminated in Battenfield's waiving the right to present mitigating evidence. When the colloquy as to waiving that right took place, Battenfield did not have a proper understanding of the nature of mitigation or specific types of mitigation. He only knew that the attorney intended to put his parents on the stand have them beg for mercy. Less than a month after Battenfield's trial, the OCCA established guidelines for trial courts to follow when a defendant refuses to allow presentation of mitigation in the sentencing phase. While that case was not the law at the time of Battenfield's trial, the guidelines are little more than common sense and should have been followed by the trial court. The OCCA did not differentiate between the purported waiver and Battenfield's so called lack of cooperation. The remaining question is whether Battenfield was prejudiced. That is whether there was a reasonable probility that, but for counsel's unprofessional errors, the result of the preceding would have been different. The court has to consider the strength of the government's case and aggravating circumstances as well as mitigation that may have been presented. The two aggravating factors were HAC, the heinous and cruel aggravator and continuing threats. On direct appeal, the OCCA struck the heinous and cruel factor as not supported by the evidence, noting that the blow to the victim's head would likely have rendered him immediately unconscious. Battenfield had available a variety of mitigating evidence to counterbalance the one remaining aggravating factor. His 1978 conviction may even have been an act of self defense. The jury may have either decided that mitigation outweighed the single aggravator or that there was insufficient evidence of continuing threat.
Allen v. Massie, 98-6340 (January 4, 2001)
Allen moved to recall the mandate and requested a stay of execution. A motion to recall the mandate in a § 2254 habeas action may be regarded as a second or successive application for purposes of § 2244(b) of the AEDPA. Allen sought to recall the mandate for reexamination of her claims of ineffective assistance of counsel in light of the Supreme Court's decision in Williams. A claim in a successive motion cannot be one which was presented in a prior application. Even if this claim were available the successive petition provision requires dismissal unless the applicant shows the claim relies on a new rule of constitutional law made retroactive to cases on collateral reviewed by the Supreme Court that was previously unavailable. There is nothing in the Supreme Court's decision in Williams that even remotely resembles a new rule of constitutional law. Instead, the Williams court reaffirmed all claims of ineffective assistance of counsel should be resolved under Strickland.
(2) Section 2244(b) does not foreclose the possibility that a federal court could recall its mandate sua sponte to reconsider issues raise in a petitioner's first federal habeas petition. But when a court sua sponte recalls its mandate, it abuses its discretion unless it acts to avoid a miscarriage of justice.
United States v. Weller, 99-3268 (January 4, 2001)
Ronald E. Wurtz, FPD, Topeka, Kansas
Weller was convicted of embezzlement in violation 18 U.S.C. § 656.
HELD: (1) Embezzlement requires proof of fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come. The court rejected Weller's distinction that the crime occurred after the bank had closed for the business day and therefore her presence was unauthorized. As the bank's branch manager she had lawful possession of the money. She was given all the means for effective access to and control of the money by virtue of a special trust placed in her by her employer. The evidence is sufficient to consist of embezzlement. Therefore the court need not consider the weight of evidence related to the alternative charge of misapplication of funds. If the indictment charges several acts in the conjunctive, the jury's verdict stands that the evidence is sufficient with respect to any of the acts charged.
(2) If embezzlement and misapplication are separate offenses in § 656, a charge of embezzlement and misapplication would be improperly duplicitive. If they are merely different means of committing a single offense, no duplicity arises. The enumerated actions are alternative means of violating § 656. In any case the jury received a limiting instruction stating it must find unanimously either embezzlement or misapplication, and it voted to convict Weller of embezzlement. Were there any danger of a divided jury opinion over which charge was proper, this jury instruction cured such danger.
THIS IS WHERE THE TAPE BECAME VERY VERY DIFFICULT TO HEAR AS A RESULT OF THE BATTERIES BEING LOW. I CHANGED THEM AFTER YOU DID THIS TAPE - SO THERE ARE A LOT OF SPACES.
(3) The court reviews rulings on evidentiary matters for abuse of discretion. The government introduced evidence ___________________. Evidence of poverty has not been admissible to show a motive for committing crime. Not only would such evidence be unduly prejudicial, _______________ but it does not prove much. But situations in which poverty evidence is used to supply motive can be distinguished from those in which financial evidence is introduced to the show of sudden change in a persons financial status. In some cases an unexplained abrupt change of circumstances is not merely proof of motive but also amounts to circumstantial evidence of the crimes. Years of government introduced evidence that Weller possessed a large amount of cash after the robbery, where before the robbery she had an empty bank account, maxed out credit cards and no other obvious source from which to obtain cash. Therefore the sudden change in circumstances was evidence of guilty and went beyond an improper use of poverty as motive.
(4) In response to the government's evidence of her financial situation, Weller sought to introduce an appraisal of items she claimed to have sold to use as funds. The government objected on the grounds of hearsay and no foundation. The court sustained the objection. Weller then testified about the items on direct examination and defense counsel sought to use the appraisal to refresh her recollection about details related to the values of some art work. The court again sustained the government's objections. The circuit reviewed the district court's decision to withhold a writing from a witness for abuse of discretion. Anything may be used to refresh a witness' recollection ____________________. However the court has discretion to withhold a writing from a witness when the judge believes the document will be a source of direct testimony rather than repeat or refreshing the witness' independent recollection.
(5) At sentencing the district court determined that Weller had perjured herself at trial and imposed the enhancement for obstruction of justice. The court found specifically that she lied in testifying that she did not enter the bank on the evening of June 3, 1996 and take money out of the night deposit vault, and then on past occasions a security officer had directed her to share her alarm code with other employees, and ________________ requested a new alarm code from the bank's security officer but never received one. A witness commits perjury if, while under oath, she gives false testimony concerning material matter with the willful intent to provide false testimony, rather than as a result of ____________________ or faulty memory. To find perjury automatically every time a defendant takes the stand will infringe the right to testify in one's own behalf. The Supreme Court requires the trial court to carefully view the evidence and make findings independent of the verdict and specifically identify the testimony at issue and establish that it in fact constituted perjury. The circuit defers to the district court's ability to judge the credibility of the witnesses. Giving proper deference to the judge's determination, the circuit found ample evidence to suggest perjury.
United States v. Huckard, 99-2186 (January 8, 2001)
Huckard was convicted of conspiracy to possess with intent to distribute 500 grams of _________________________, __________________________
HELD: (1) A defendant's claim of insufficient evidence was reviewed de novo. To sustain a conviction under § 922(g), the government must prove the defendant was convicted of a crime punishable by imprisonment excluding one year, thereafter knowingly possessed a firearm, and the possession was in or affecting interstate or foreign commerce. Constructive possession is sufficient. In cases of joint occupancy, where the government seeks to prove constructive possession, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband. The government demonstrated the defendant was the owner of the residence where the revolver was found, that he was awake and near the gun at the house where the gun was discovered, and that he had received the gun no more than a few months prior to his arrest. It was not irrational for the jury to conclude that the defendant knowingly held the power to exercise dominion and control over the revolver.
(2) A conviction for possession with intent to distribute requires proof that a defendant possessed a controlled substance, knew he possessed a controlled substance and intended to distribute it. Two witnesses both testified the defendant knew the substance in the bag was cocaine.
(3) To prove a conspiracy, the evidence must establish an agreement with another person to violate the law, knowledge of the essential objective of a conspiracy, knowing and voluntary involvement, and interdependent among the alleged conspirators. A defendant's activities are interdependent if they facilitated the endeavors of other alleged conspirators or facilitated the venture as a whole.
(4) Co conspirator statements are admissible when the trial court determines the conspiracy is proven by a preponderance of evidence, the declarant and defendant are both members of the conspiracy, the statements they made in court are in furtherance of the conspiracy.
(5) The circuit declined to search the record for support of the claim as to error in admitting Rule 404(b) evidence, when the defendant's brief fails to identify the evidence to which he refers.
(6) The district court's decision to refuse severance of counts under Rule 14 will not be reversed absent a strong showing of prejudice. Heckerd failed to show prejudice in the district court's refusal to sever the firearm and narcotic charges.
(7) The district court gave an elaborate explanation of the crime of conspiracy but did not identify as one of the elements "interdependent." Counsel did not object. Plain error exists if the contested instruction was so prejudicial or lacking an element that justice cannot be served. To prove a conspiracy, the government must prove an agreement with another person who violates the law, knowledge of the essential objective, knowing and voluntary involvement, and interdependence among the alleged co conspirators. Interdependence exists when each co conspirator's activities constitutes and essential an integral step toward the realization of a common illicit goal. It would have been preferable for the district court to have used the word "interdependence" in its instruction. However the circuit reviews whether the instruction as a whole was so prejudicial or lacking in their elements that justice cannot have been served. The instruction as a whole adequately appraised the jury. The omission of "interdependent" as a separately numbered element has been previously held to not constitute error.
(8) Huckerd received an upward adjustment for obstruction of justice in a §3B1.1. He had given Florez an exculpatory statement for Flores to sign. The district court found that the defendant had prepared a false sworn statement in an effort to block Flores out as a witness and Flores felt threatened and fearful for himself and his family. The circuit found no clear error in the district court's findings. Heckerd next argues the district court erred in ordering a two level adjustment for possessing a firearm during a drug trafficking crime under §2D1.1(b)(1), claiming the weapon had no physical proximity to the drug offense. The government's initial burden is met when it showed the weapon was located near the general location where at least part of the drug transaction occurred. The government met its burden. The burden to the defendant to show it was clearly improbably that the weapon was connected to the offense.
(9) Huckerd urges the district court erred in failing to reduce his sentence for minimal participation under §3B1.2. It does not appear that Huckerd was a significant player in the larger conspiracy. While the facts might support an adjustment, review is for clear error. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous.
(10) Apprendi was decided since the briefing took place. The government concedes Apprendi applies. Apprendi presents a new rule of constructional criminal procedure, and that could be applied retroactively to cases on direct review. The quantity of drugs in an offense under § 841 is an essential element to be charged in an indictment and submitted to the jury. Unless a specific drug quantity is charged and found by the jury, a defendant may only be sentenced to a maximum of 20 years. In this case although the amount of cocaine was set forth in the indictment, the amount was not determined by the jury. This was error. Review is for plain error. While the error is plain, no substantial rights have been affected. Huckerd was sentenced to 14 years, well below the 20 year limit. In Apprendi, the Supreme Court avoided disrupting the use of the sentencing guidelines so that the use of drug quantity to increase the guideline range did not increase the maximum sentence and did not violate Apprendi. Failure to cite to the correct subparagraph in an indictment is harmless error.
(11) As to supervised release, under 21 U.S.C. § 841(b)(1)(C), the offense is a class E felony and 18 U.S.C. _______only allow the maximum of three years supervised release. Yet Heckerd was sentenced to concurrent five year terms. Because Congress inserted the language "except as otherwise provided in § 3583(b)(2) when § 841 was enacted, the Tenth Circuit has held that Congress carved out an exception to § 3583(b)(2) for the supervised release term of § 841. Section 5D1.2(a) has been amended since the circuit's decision in Orozco-Rodriguez. Previously § 5D1.2(a) declared that if the defendant is convicted under a statute that requires a term of supervised release, the term shall be at least three years but not more than five years, or the minimum period required by statute, whichever is greater. At the time of Huckerd's trial, the guidelines states: "If a term of supervised release is ordered, the length of the term shall be at least two years but not more than three years for a defendant convicted of a class C or D felony. As ________ to the present guideline, § 841(b)(1)(C) provides that supervised release shall be at least two years. The statute trumps the guideline when the two conflict. Therefore § 841(b)(1)(C) is no restricted by §5B1.2(a) or § 3583(b)(2) from establishing terms of supervised release greater than two years.
United States v. Ryan, 99-3366 (January , 2001
(Marilyn M. Trubey, FPD, Topeka, Kansas)
This case involves the question of whether a court may, when determining a defendant's offense level, considered drugs and weapons that the government could not have used at trial because they were the product of an unconstitutional search and seizure. The district court considered the illegally obtained evidence. The circuit affirmed.
Prior to trial the district court granted the defendant's motion with regard to one of the stops. He pled guilty to two counts of possession of methamphetamine. At sentencing he objected to use of the suppressed evidence in determining his offense level.
HELD: (1) The district court's determination that illegally obtained information can be considered for sentencing purposes is a legal conclusion reviewed de novo. The court balances the incremental deterrent effect of applying the exclusionary rule at sentencing against the costs of impairing effective and suitable punishment and unduly complicating sentencing procedures. All nine other circuits that have considered this issue have determined that in most circumstances the exclusionary rule does not bar introduction of the fruits of illegal searches and seizures during sentencing proceedings. This is consistent with the law of the Tenth Circuit as well.
(2) The government has the burden of proving the quantity of drugs by a preponderance of the evidence. Review of the district court's calculation of drug quantities is for clear error.
Garcia v. INS, 99-9540 (January , 2001)
Garcia appealed the board of immigration appeals' decision affirming an immigration judge's ruling. A petitioner is removable as a result of his conviction for commission of an aggravated felony. The circuit concluded the petitioner is an alien subject to removal for commission of an aggravated felony, and dismissed for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C). Garcia now resides in Mexico.
HELD: (1) Under former INA provisions, a petitioner had to request a stay of deportation in order to preserve judicial review. Now deportation no longer forecloses judicial review. But the court had to determine whether Garcia's case continues to present a case or controversy. Garcia's situation is analogous to a prisoner whose sentence has expired and therefore his deportation must have collateral consequences. Garcia's inability to reenter and reside legally in the United States with his family is a collateral consequence of his deportation because it is clearly a concrete disadvantage imposed as a matter of law. A favorable judicial decision would undoubtedly redress the injury as Garcia's status as a legal permanent residence could be restored. Therefore the appeal is not moot.
(2) The INA's new permanent provisions, enacted in 1996, apply to Garcia's case. The circuit held it retains jurisdiction under the permanent provision to determine whether the jurisdictional bar applies. The circuit could decide whether petitioner is an alien deportable by reason of a criminal offense listed in the statute. The permanent provision divest's courts of jurisdiction only if the alien is removable by reason of having committed a criminal offense, and does not say that courts lack jurisdiction if the alien is found deportable. In holding that the court retains jurisdiction to conduct a limited review of jurisdictional facts, the circuit followed the clear trend of other circuits.
(3) The court applies de novo review in determining whether the plain language of the applicable statutory provisions clearly demonstrates Congress' intent. If the statue is subject to varying interpretations because it is silent or ambiguous with respect to the specific issue, the court determines whether the agency's answer is based on a permissible construction of the statute. If the interpretation is reasonable, the court must defer to the agency's construction of the statute. The court deferred to the BIA's interpretation provided it is reasonable.
(4) Garcia does not dispute that he is an alien. The BIA affirmed the immigration judge's decision that Garcia is deportable by reason of having committed an aggravated felony. In the Immigration context, the term "aggravated felony" is defined by various offenses described in 8 U.S.C. § 1101(a)(43), and includes a crime of violence for which the term of imprisonment is at least one year. Garcia's state conviction under the Idaho Code meets the definition of a crime of violence in 18 U.S.C. § 6, incorporated by the immigration statute. Garcia's Idaho offense was a DUI. The court applied the categorical approach and considered the generic elements of the offense. The circuit held the BIA reasonably concluded that 18 U.S.C. § 16(b) includes the offense of DUI. There is an inherent danger in driving under the influence.
United States v. Perez De Dios, 00-1193 (January 19, 2001)
(Normando R. Pacheco, Denver, Colorado)
HELD: (1) The circuit held that in a reverse sting, the defendant is responsible for the agreed upon amount, citing §2D1.1, application note 12.
(2) A defendant's prior conviction and sentence of one year of probation for driving without proof of insurance counts when computing criminal history category under §4A1.2(c).
(3) A sentencing court's fact findings on quantities of drugs are reviewed for clear error while legal issues are reviewed de novo.
(4) The court reviews the district court's interpretation and application of the guidelines de novo. As a general rule, misdemeanor convictions are counted. Subsections (c)(1) and (2) of §4A1.2 excludes certain misdemeanors where the prior conviction is similar to an offense listed under (c)(1), and the sentence was less than a term of probation of one year or a term of imprisonment for 30 days, and the prior conviction is not similar to the current offense. This court has held that a prior misdemeanor conviction for menacing was not similar to a minor traffic infraction or disorderly conduct. This court has found that a prior conviction for harassment is not similar to one for disorderly conduct or disturbing the peace. This court has also made a distinction between a prior conviction of larceny of merchandise and possession with intent to distribute cocaine. The Eighth Circuit has held that the term "similar" is to be given its normal or dictionary meaning. Applying the essential-characteristics-of-the-crime comparison, the circuit concluded that the district court properly included Perez' previous misdemeanor conviction for driving without proof of insurance in the criminal history calculation. Since he received a sentence of a year of probation for his prior conviction, he does not qualify for the exclusion under (c)(1). Therefore the court need not analyze whether driving without proof of insurance is similar to an offense listed under (c)(1), driving without a license or with a revoked or suspended license. As for the (c)(2) exclusion, the superficial similarity that both offenses involve driving a car is overshadowed by the significant different that the former is concern not with actually operating the automobile (the misdemeanor for driving without proof of insurance) as is the latter (minor traffic infractions), but with failing to abide by regulations designed to assure that unsafe drivers are not on the road at all.
United States v. Salas-Mendoza, 99-6421 (January 22, 2001)
(Theresa Brown, FPD, Oklahoma City, Oklahoma)
Mendoza plead guilty to one count of reentry of a removed alien in violation of 8 U.S.C. § 1326(a). The district court increased the offense level by 16 points due to the prior conviction for illegally transporting aliens. Mendoza argues that a conviction of illegally transporting aliens does not fall within the definition of aggravated felony.
HELD: (1) The circuit reviews the district court's legal interpretation de novo. Mendoza argued that a conviction for illegal transportation of aliens does not relate to alien smuggling because smuggling requires movement across the border whereas transportation involves movement of aliens within the United States. Mendoza cites no case law in support of this. The circuit held that the crime of transporting aliens is an aggravated felony for purposes of an increase in the base offense level under §2L1.2(b)(1)(A).
United States v. Vallo, 99-2328 and United States v. Chino, 00-2078 (January 23, 2001)
Chino and Vallo were jointly tried and convicted of second degree murder of Zachery Vallo, age 16 months. Chino was also convicted of multiple counts of assault on Zachery. (This case involves David Chino and Claudine Vallo).
HELD: (1) The court reviews the record de novo to determine the sufficiency of the evidence to support a conviction and the denial of a motion for judgment of acquittal. Second degree murder is the unlawful killing of a human being with malice of forethought. The malice of forethought requirement can be satisfied by intent to kill without the added ingredients of premeditation and deliberation, intent to do serious bodily injury, depraved heart, or commission of certain felonies. Existence of a depraved heart may be established by evidence of conduct which is reckless ______________ in a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm. The evidence showed that Chino had assaulted Zachary in the past by hitting him, shaking him and throwing him into the wall. Chino was enraged when he left on the day of the death, Zachary was lying on the floor and he admitted he shook Zachary, medical testimony established that the bleeding around Zachary's retinas could only have been caused by violent shaking, and the cause of death was a combination of shaking and blunt force trauma. Ms. Vallo was convicted of aiding and abetting the murder. She testified in her own defense. The court may consider the entire record in determining sufficiency of the evidence. This court is bound by its decision in Lazcano-Villalobos that holds that when a defendant testifies, the court may consider the entire record in ruling on a renewed motion for acquittal at the close of all the evidence.
(2) To be guilty of aiding and abetting, the defendant must willfully associate herself with the criminal venture and seek to make the venture succeed due to some action of her own. Vallo was aware of Chino's abuse of her young son and did nothing to stop it. She witnessed an incident of Chino abusing Zachary. When Zachary was taken to the hospital, she admitted that she pushed him out of the chair twice having him land on his head.
(3) The court reviews the district court's fact findings on prosecutorial vindictiveness for clear error, and reviews legal principles de novo. To establish a claim of prosecutorial vindictiveness, Vallo must prove either actual vindictiveness or a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness. Vallo has presented no evidence of actual vindictiveness. The Supreme Court has generally rejected the presumption of prosecutorial vindictiveness in the pretrial context. Vallo argues that because she did not tell the government what it wanted to hear in two debriefings, the government retaliated. The record does not support her claim
(4) The court reviews the district court's application of the guidelines de novo and fact determination for clear error. The district court did not clearly err in denying the downward adjustment for acceptance of responsibility.
United States v. Thompson, 00-7028 (January 24, 2001)
(Vicki Mandell-King, FPD, Denver, Colorado)
In November 1994, the federal government filed a complaint against Thompson charging him with distribution of crack cocaine. He entered into a plea agreement whereby the government would dismiss the charges and he agreed to plead guilty to the same charge in the State of Oklahoma. The agreement was not in writing but there was no dispute as to its terms. Thompson cooperated fully with federal authorities and the government dismissed the complaint against him. In October 1998, the State of Oklahoma filed a criminal information against him. In November, Thompson filed a motion to dismiss state charge due to expiration of Oklahoma's three year statute of limitations. Oklahoma dismissed the charges. The same month the federal government filed an indictment against him charging him with the earlier activity. The indictment failed to specify the quantity of crack cocaine. Thompson moved to dismiss based on the plea agreement. The district court denied the motion. Thompson was found guilty after trial and was sentenced to 121 months imprisonment and 60 months supervised release.
HELD: (1) Whether a plea agreement has been violated is a question of law reviewed de novo.
(2) Although Thompson moved to dismiss based on vindictive prosecution, the underlying rationale of the motion was the government's alleged breech of the plea agreement. The district court ruled on the motion as if it were a motion to dismiss for breech of plea and the circuit treated the motion the same way. Failure to properly object to breech of a plea agreement at sentencing ordinarily does not waive the objection.
(3) The court accepts principles of contract law to determine whether one party or the other has violated a plea agreement. To determine whether the government's action constituted a breech, the court examines the nature of the government's promise, and evaluates the promise in light of the defendant's reasonable understanding of the promise at the time of the agreement. The government promised not to charge Thompson in federal court if he pled guilty in state court. Oklahoma has a three year statute of limitations. Statutes of limitations serve an important public interest in encouraging prompt resolution of charges. The federal government was either actively or constructively aware of the Oklahoma statute of limitations. There is no reasonable understanding of the government's promise that would impose upon Thompson an obligation to stand ready to plead guilty in state court in perpetuated. Thompson's reasonable understanding of the government's promise was that he would be required to plead guilty to charges any time within the three year statute of limitations. Even though the plea agreement did not require Thompson to waive the statute of limitations defense, the circuit nonetheless refused to construe the language of a plea agreement so literally that the purpose of the plea agreement is frustrated. When two parties enter into a contract, each has an object or purpose. The government's purpose was to obtain a conviction against Thompson for his conduct. When a supervening event renders one party's performance virtually worthless to the other, the aggrieved party is discharged from performing under the doctrine of frustration of purpose. The non-occurrence of the supervening event must have been a basic assumption of the agreement. The government's fundamental purpose was frustrated by the failure of Oklahoma's prosecutors to timely charge Thompson. The failure of the Oklahoma prosecutors to timely charge Thompson cannot be the fault of the federal government. Therefore the government did not violate the plea agreement.
(4) The court reviews de novo challenges to sufficiency of the indictment as a legal question of whether Apprendi was violated by Thompson's sentence. In Apprendi the Supreme Court held that 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. The indictment alleged and the jury found beyond a reasonable doubt that Thompson committed a crime by distributing cocaine base. The only alleged failure of the indictment is the absence of a specific drug amount. Thompson's sentence falls within the 0 to 20 year range under 21 U.S.C. § 841(b)(1)(C) and therefore there is no Apprendi violation.
(5) The circuit also rejected the argument that Apprendi is triggered by the concurrent five year terms of supervised release. The five year terms were within the minimum statutory range. Section 841(b)(1)(C) provides for a minimum three years supervised release and the guidelines authorize a term of not less than three and not more than five years.
United States v. Grassie, 99-2281 (January 19, 2001)
(Jill M. Wichlens, FPD, Denver, Colorado)
Grassie appeals from his conviction and sentence after jury trial on charges of burning down a church and defacing and damaging four Mormon churches and arson of a truck.
During May and June 1998, Grassie committed serial acts of vandalism and desecration of Mormon churches in several cities in New Mexico, ultimately completely destroying a church n Roswell. The parties stipulated that the Mormon churches were engaging in activities affecting interstate commerce. The parties intended that the stipulation would establish the facts necessary to satisfy the Commerce Clause elements of both 18 U.S.C. § 247 (felony destruction of a church by a fire because of the religious character of the property) and 18 U.S.C. § 844(i) (arson of the building or vehicle used in any activity affecting interstate commerce.
Also in June, Grassie poured gasoline on a vehicle at a residence, setting the truck on fire. The truck belonged to a young man who was the son of a woman who had angered Grassie by breaking off a relationship with him. The young man, Jensen, worked for a woman whose business involves selling pecans in interstate commerce.
At sentencing, Grassie received a total of five years on counts one, two, four-nine. Count three, under 18 U.S.C. § 844(h)(1), he received a mandatory consecutive ten year sentence for commission of any federal felony by use of fire or an explosive.
HELD: (1) The court reviews sufficiency of the evidence de novo, in the light most favorable to the government, and will reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The court reviews legal challenges to jury instructions de novo to determine whether, considering the instructions as a whole, the jury was misled. Grassie initially conceded the sufficiency of the evidence on the interstate commerce element, except for as to the truck. Grassie relies on the recent Supreme Court Jones decision, dealing with 18 U.S.C. § 844(i), and applying the interstate commerce element to the arson of an owner-occupied private residence. The Supreme Court held that an owner-occupied residence not used for any commercial purpose does not qualify as property "used in" commerce or commerce-affecting activity. The Tenth Circuit in Monholland used a functional analysis to determine use on § 844(i). The circuit held that when no connection at all is made between actual use and interstate commerce, the dominimus standard is not met. Neither the Supreme Court nor the Circuit invalidated the dominimus standard.
(2) Jones did not address 18 U.S.C. § 247, felony destruction of a church by fire because of the religious character of the property. The circuit relied on its earlier decision in Malone (2000). The court referred to the legislative history of § 247, and held that nothing in Jones requires reversal of the § 247 conviction.
(3) The Commerce Clause applies to charitable and non-profit entities. Defense counsel regarded the stipulation as sufficient for all purposes in the case, and was a tactical decision to avoid having a jury hear extensive and emotionally charged testimony. Grassie has not shown that it would be manifestly unjust to hold him to his stipulation of facts.
(4) Recent cases in other circuits in light of Jones do not support Grassie's argument.
(5) The court declined to consider the argument that §§ 247 and 841(i) were unconstitutional as applied.
(6) As to the vehicle, Jones requires that the vehicle must have actually been used in an activity affecting interstate commerce. Taking the evidence in the light most favorable to the government, the court could not say the evidence was insufficient.
(7) As to the claim that the convictions under § 247, destroying a church by fire because of the religious nature of the property, and § 844(h)(1), using fire to commit any federal felony, violates the Double Jeopardy Clause. It is settled that Congress and state legislatures can impose cumulative punishments in a single trial for the same criminal conduct without ________ the Double Jeopardy Clause of the Constitution. The question is whether the legislature clearly intended cumulative punishment under two different statutory provisions. The central inquiry is one of statutory construction. The court analogized two cases dealing with 18 U.S.C. § 924(c), using and carrying a firearm. The circuit has previously held that Congress intended cumulative punishment through both § 924(c) and the underlying felony, even if that felony imposes its own punishment for using a firearm. Grassie argued that § 844(h)(1) does not authorize cumulative punishment of fire to commit a felony because (1) the Cumulative Punishment Clauses of the statute do not use the word fire, but refer to predicate felonies which provide enhanced punishment for using a deadly or dangerous weapon or device, and for consecutive punishment where the underlying felony is one in which the explosive was used or carried, and (2) the omission of a specific reference to fire in the cumulative punishment clauses of the statute evidence is a congressional intent to limit cumulative punishment to the use of explosives, or at least creates an ambiguity which justifies applying the rule of lenity and the holding in Busic and Simpson. Third, Grassie argues that the legislative history of § 844(h)(1), relating to the amendment that the cumulative punishment language, refers only to explosives. Fourth, a literal reading of the statute would unreasonably include its application to § 844(i), the general arson statute. Fifth, the legislative history of the 1994 Amendment to § 247, adding the use of fire as a felony for damaging or destroying religious property, and the 1996 Amendment increasing the penalty, making no mention of § 844(h)(1) or any maximum penalty for the use of fire beyond that provided in § 247(d)(3) evidences congressional intent not to permit multiple punishment for using fire. The central theme of Grassie's arguments is that the omission of the word "fire" from the cumulative punishment clauses of § 844(h)(1) means that Congress did not intend that statute to apply to felonies which enhance punishment if committed by fire. However, the operative word that the cumulative punishment clause also failed to specify explosives. Grassie urges that the phrase "deadly or dangerous weapon or devise" is a synonym for "explosive" but excludes "fire." The court rejected that argument. By pairing fire with explosives in § 844(h)(1), Congress clearly placed these weapons in parity, and signaled its view that commission of felonies by these means constitutes the use of a deadly or dangerous weapon or device. Silence in the legislative history does not control the court's view as to the plain meaning of the statute on its face. The court did not regard the statute as ambiguous and therefore did not apply the rule of lenity.
Lafevers v. Gibson, 00-6381 (January 29, 2001)
(Patrick J. Ehlers, Jr., FPD, Oklahoma City, Oklahoma)
Lafevers appeals dismissal of his second § 2254 habeas petition. The district court had granted a COA. The district court dismissed the petition after concluding that it failed to satisfy 28 U.S.C. § 2244(b)(2)(B)(ii) which requires that a claim in a second or a successive § 2254 habeas petition that was not presented in the prior petition should be dismissed unless the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. A panel of the Tenth Circuit, with one judge dissenting, had authorized Lafevers to file the second habeas petition under § 2244(b)(3)(A). That authorization represented the determination that Lafevers had made a prima facia showing that he could meet the requirements of § 2244(b). Upon filing the second petition, the district court was obligated to determine whether the petition did in fact satisfy the requirements of § 2244(b). This appeal involves the Brady/Giglio claim involving blood stains on the pants and DNA testing. The district court rejected Lafevers contention that the exhibit was the linchpin of the prosecution's case, and Lafevers could not satisfy the burden of proving by clear and convincing evidence that but for the Brady/Giglio violation, no reasonable juror would have found him guilty of the crime. The district court refused to consider whether the jury would have imposed the death penalty, relying on the express terms of § 2244(b)(2)(B)(ii) which speaks only to innocence of the "underlying offense."
HELD: (1) A district court's dismissal of a second § 2254 petition on the grounds that the petition does not satisfy the requirements of § 2244(b) is a legal question reviewed de novo. The issues presented are whether Lafevers has shown by clear and convincing evidence that absent the assumed Brady/Giglio violation, no reasonable fact finder would have convicted him of first degree murder or sentenced him to death. The circuit concluded Lafevers has failed to satisfy his statutory burden as to the underlying murder conviction, and reach the same conclusion as to the sentence of death, and found it unnecessary to resolve whether the statute contemplates a claim that a successive petitioner can be innocent of the death penalty. There is a split in the circuits on the question of whether § 2244(b)(2)(B)(ii) encompasses death sentence challenges.