Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Certificate of Appealibility, Standard of Review;

Due Process - Cannot be Sentenced For Crime Not Charged

Beem v. McKune, 00-3224 and Henson v. McKune, 00-3249 (January 8, 2002)

Beem and Henson appeal the dismissals of their § 2254 habeas petitions. The issue involves a peculiarity in Kansas state law. Changes in the law indicate that this issue will never come up again. The question is whether Beem and Henson may be sentenced and imprisoned for crimes for which they were not charged, tried or convicted.

Beem was convicted of indecent liberties with a child and a count of aggravated assault. His sentence for indecent liberties was vacated, and he was sentenced for the crime of aggravated incest.

Henson was convicted of rape. The Kansas Court of Appeals found he should have been charged with aggravated incest. His sentence for rape was vacated, and he was sentenced for aggravated incest.

HELD: (1) In order to obtain a COA, an appellant must demonstrate that reasonable jurists would find the district court's assessment of constitutional claims debatable or wrong. The court granted both appellants certificates of appealibility.

(2) In evaluating a federal district court's denial of a habeas petition, the court reviews legal conclusions de novo and fact findings for clear error. The AEDPA standard of review applies.

(3) Kansas law requires that criminal behavior, prohibited under both a general statute and a specific statute, must be prosecuted under the specific statute. In the Kansas decision in Williams, the court held that when a defendant is related to the victim, the state may charge aggravated incest but not indecent liberties with a child. The Kansas legislature has decided that a sexual crime against a family member is to be treated less severely than a sexual crime perpetrated by an attacker unrelated to the victim. The quandary is: what must be done when the defendant is prosecuted for rape or indecent liberties with a child, rather than aggravated incest as required by Kansas law. The Kansas court's Carmichael decision instructs that the solution is to vacate the sentence and resentence for aggravated incest. This is not merely a resentencing, but instead alters the crime of conviction. Aggravated incest is not a lesser included offense of rape or indecent liberties. The Kansas solution in Carmichael violates the Supreme Court decision in Cole v. Arkansas, 333 U.S. 196 (1948). A person cannot be sentenced for a crime not charged, and to which no plea of guilty has been entered. Courts are forbidden from directing verdicts against criminal defendants on any elements of a crime. The circuit is prohibited from taking judicial notice of any element of a crime of aggravated incest, regardless of how easily the particular element could have been proved. The fact that the new sentence is less than the punishment for rape or indecent liberties is immaterial. This error is not harmless.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Death Penalty;

Guilty Plea - Voluntary;

Ineffective Assistance of Counsel;

Aggravating Factors - Duplicate, Prior Violent Felony

Fields v. Gibson, 00-6145 (January 17, 2002)

This is an appeal from denial of habeas relief in a death case.

Fields is a drug addict who, in order to feed his addiction, tried to steal a television from a house he thought was empty. He was drunk, and probably high, and was not carrying a weapon. Schem, the victim, surprised him, brandishing her .25 mm pistol. After a struggle, he got control of the gun and shot her once through the back of the neck and head, killing her instantly. He fled. The gun may have had a hair trigger. Field's prior convictions were for first degree robbery, snatching an elderly woman's purse, and unauthorized use of a motor vehicle. Although this looks like a burglary gone bad, Bob Macy, the prosecutor, chose to pursue the death penalty. The circuit found no reversible error, and affirmed the conviction and sentence.

HELD: (1) Whether a plea is voluntary is a question of federal law, but this legal conclusion rests on fact findings and inferences from those findings. Fields has failed to show that the OCCA's conclusion that he entered his plea voluntarily was contrary to, or involved in unreasonable application of, clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts. The due process clause requires that a defendant knowingly and voluntarily enter a plea of guilty. A plea can be involuntary even if the threats or promises do not come from a person within the criminal justice system. The question is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant. A plea may be involuntary if counsel informs the defendant he has no choice and must plead guilty. But an erroneous sentence estimate by defense counsel does not render a plea involuntary. The trial court advised Fields that he could be sentenced to death. Fields never alleged his family members forced or threatened him.

(2) Claims of ineffective assistance are mixed questions of law and fact. A defendant must show deficient performance, and in the plea context, to show prejudice, the defendant must show there was a reasonable probability he would not have pleaded guilty and would have insisted on going to trial. There is no deficient performance based on counsel's sense of the way the judge would handle the sentencing based on comments during hearings. Fields also argues counsel was ineffective because he was not guilty of burglary, and therefore could not be guilty of felony murder. It was not a forcible entry, Fields was unarmed, and he did not think anyone was at home. The federal district court found the claim procedurally barred. The circuit found that the claim failed on the merits. The essential elements of first degree burglary are breaking and entering a dwelling of another, in which a human is present, with the intent to commit some crime therein. There is no requirement that the defendant know someone is at home, but rather, a conviction simply requires that someone must be at home.

(3) The constitutional validity of aggravating factors is a question of law subject to de novo review. The presence of duplicative aggravating factors results in weighing a factor twice, and such double counting has a tendency to skew the weighing process. Therefore the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process which requires a reweighing. The applicable test is not whether certain evidence is relevant to both aggravators, but whether one aggravating circumstance necessarily subsumes the other. The three aggravating factors in this case are not duplicative because none of them necessarily subsumes the others. A prior violent felony and continuing threat to society are not duplicative. So long as the aggravators are not duplicative, there is no problem with using the same evidence to support different aggravators.

(4) The OCCA rejected Fields' claim that his first degree robbery conviction was a prior violent felony. Oklahoma defines a prior violent felony as a felony involving the use or threat of violence to a person. Fields had snatched a purse from a 58 year old woman. The victim's daughter, who was with the victim, chased and caught up with Fields, who knocked her down during the struggle. First degree robbery is defined as robbery, when accomplished by the use of force, or putting the person robbed in fear of some immediate injury to his person. The circuit could not say that the OCCA committed error under the AEDPA standard.

Guideline Interpretation;

Dangerous Weapon (§2B3.1(b)(2)(E)) - Amendment, Substantive or Clarifying, No Actual Object, Sufficient Evidence, Double Counting;

Ex Post Facto Law;

Bank Robbery (18 U.S.C. § 2113)

United States v. Farrow, 01-6105 (January 24, 2002)

(William P. Earley, FPD, Oklahoma City, Oklahoma)

Farrow pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). He claims the district court erred in determining his sentence by finding him to have possessed a dangerous weapon during the robbery. Amendment 601, effective November 1, 2000, altered the definition of "dangerous weapon" under §2B3.1(b)(2)(E).

HELD: (1) The court reviews the district court's legal interpretation and application of the guidelines de novo. It reviews fact findings underlying upward adjustments with deference.

(2) The Sentencing Commission stated the reason for the amendment to the definition was to clarify under what circumstances an object that is not an actual dangerous weapon should be treated as one. A defendant is ordinarily sentenced under guidelines in effect at the date of sentencing. If the court determines that the guideline manual in effect on the date of sentencing would violate the ex post facto clause of the Constitution, the court shall use the guidelines in effect on the date the offense of conviction was committed.

(3) To decide whether Amendment 601 is substantive or merely clarifying, the court considers a variety of factors, including the Commission's characterization of the amendment, whether the amendment changes the text of the guidelines or just the commentary, and whether the amendment alters the controlling pre-amendment interpretation of the guideline at issue. Here, the Commission characterized the amendment as clarifying. While entitled to deference, this characterization is not conclusive. The amendment did not change the text of the guidelines, but only the commentary. The amendment does not compel the court to overrule existing circuit precedent in order to interpret it consistently with the amended commentary. The amendment does not impose a greater punishment by merely clarifying the definition of dangerous weapon. Therefore, Farrow's sentence did not violate the ex post facto clause.

(4) Farrow argues that, under either the 1998 or the amended guideline, there is insufficient evidence to support the three level upward adjustment because he did not even possess an object, but rather, placed his hand in his pocket to give the impression that he possessed a dangerous weapon. The court ruled that the Commission intended a more expansive reading of the word "object" than Farrow urges on appeal. Even the perception of a dangerous weapon has the potential to add significantly to the danger of injury or death. Although the victim's perception of the object may be relevant to the factual inquiry, her subjective state of mind is never controlling. Using this standard, the evidence supports the enhancement.

(5) An enhancement, based on possession of a dangerous weapon in connection with a robbery under 18 U.S.C. § 2113, does not result in double counting. Possession of a dangerous weapon is not an element of the offense of unarmed robbery under the statute. Section 2113(a) reads "who, by force and violence, or by intimidation, takes money or anything of value. . ."

Witnesses - Deportation, Right to Confront, Ex Parte;

Mistrial - Discretion Standard, Fair Trial;

Prosecutorial Misconduct;

Variance - Between Indictment and Evidence, Prejudice;

Discovery - Expert Witnesses;

Victim Impact;

Cumulative Error;

Admission of Evidence;

Vulnerable Victim

United States v. Caballero (Flor), 00-4201 and United States v. Caballero (Leonardo), 00-4203 (January 24, 2002)

The defendants were convicted of conspiracy, mail fraud, wire fraud and interstate transportation of a victim of a scheme to defraud.

Leonardo and Flor Caballero, husband and wife, ran an immigration service. Their scheme was to defraud immigrants seeking permanent legal residence. Through referral agents scattered around the country, the Caballeros promised their victims immigration and legal expertise, government connections, expedited processing, and receipt of green cards. They instructed their clients to undergo medical testing, background screening and travel to Miami for interviews at significant personal expense to the victims. Meanwhile, the Caballeros collected fees for their services, and the clients never received the promised papers. Most of the clients were in the United States illegally.

HELD: (1) The Sixth Amendment guarantees a criminal defendant compulsory process for obtaining witnesses in his favor. A defendant may be denied due process and compulsory process if he makes a plausible showing that the testimony of the deported witness could have been material and favorable to his defense, in ways not merely cumulative. Sanctions will be warranted if there is a reasonable likelihood the testimony could have affected the judgment of the trier of fact. In addition to materiality, the defendants must demonstrate governmental bad faith to obtain dismissal of the indictment.

(5) The Caballeros claim that the testimony of Gutierrez constituted a fatal variance. Gutierrez' testimony concerning events varied in time, place and persons involved from the allegations in the indictment. A trial court may grant a mistrial only when a defendant's right to a fair and impartial trial has been impaired, and review is for abuse of discretion. In contrast, an allegation of prosecutorial misconduct, for which there is a contemporaneous objection, presents a mixed question of fact and law that is reviewed de novo. A variance arises when the evidence at trial establishes facts different from those alleged in the indictment. Variance between the indictment and proof is fatal upon a showing of substantial prejudice. A defendant is substantially prejudiced either because he cannot anticipate what evidence will be presented, or because he is exposed to the risk of double jeopardy. Determining whether a variance constitutes harmless error or affects substantial rights requires examination of the trial record as a whole. A true variance problem arises when objectionable evidence that materially differs from the charge described in the indictment goes unimpeded to the jury and is considered during deliberations. This case more closely resembles an instance when the court dismisses a count of the indictment and then the trial proceeds. A judgment of acquittal on some counts of an indictment in the middle of trial does not give rise to a right to a new trial. Cautionary instructions were clear and pertained to testimonial evidence from a single witness that was easily segregated in the minds of the jury.

(6) A prosecutor who knowingly presents false evidence violates due process. The Caballeros must show that Avila's testimony was in fact false, the prosecution knew it to be false, and the testimony was material. Review is for plain error due to lack of contemporaneous objection. Inconsistency in the testimony does not establish knowing use of perjury. There is an absolute lack of evidence to show falsity or the prosecutor's knowledge of false testimony.

(7) During cross-examination of Avila, defense counsel asked Avila about a prior criminal charge for possession of cocaine. The prosecution objected, stating in the presence of the jury, "we object to this unless discussions about cocaine go both ways." The Caballeros urge this comment violated the court's tentative ruling excluding evidence of Leonardo Caballero's prior cocaine conviction. The court reviews the denial of a motion for mistrial for abuse of discretion. The court considers what effect the error had, or reasonably may be taken to have had, upon a jury's decision, and whether it had a substantial influence. The comment was ambiguous and merely suggestive, and it is unlikely that it substantially influenced the jury.

(8) The court reviews allegations of prosecutorial misconduct de novo. Reversal is required only if there is reason to believe it influenced the jury's verdict. This claim arises out of when the prosecutor elicited improper testimony regarding Flor Caballeros' personality and demeanor. The court rejected the argument.

(9) As to certain government witnesses, employees of INS and the FBI, the government said they were testifying as non-expert lay witnesses. The court agreed, except as to Speirs, whom the district court found it was a close call but who testified as an expert. Because the government had not complied with discovery requirements in providing expert reports, the court excluded the remainder of Speirs' testimony. On appeal, the Caballeros claim that all four witnesses gave expert testimony. Rule 701 and 702 distinguish between expert and lay testimony. A single witness may provide both lay and expert testimony. The circuit rejected the claim that Rule 16 was implicated by the challenged testimony.

(10) In reviewing claims of prosecutorial misconduct, the court determines if the conduct was improper, and then, if any improper conduct warrants reversal. Reversal is required only if the improper conduct influenced the verdict. The Supreme Court has recognized victim impact testimony is relevant during the guilt phase of a trial because it pertains to what actually occurred.

(11) Because the court found no error, the claim of cumulative error must fail.

(12) The court reviews decisions as to admission of evidence for abuse of discretion.

(13) The court reviews the district court's identification of unusually vulnerable victims for clear error. The district court's findings support the vulnerable victim enhancement.

Certified Question to State Court;

Double Jeopardy - One Shooting Spree;

Non-Retroactivity Principle in Habeas

Burleson v. Saffle, 00-6254 (January 24, 2002)

(Susan M. Otto, FPD, Oklahoma City, Oklahoma)

In this case, the Tenth Circuit submitted to the OCCA a certified question of Oklahoma law. The question stated that in 1997, the OCCA had held in Locke v. State that, where a vehicle is used to facilitate the intentional discharge of a weapon during a single transaction or shooting event, only one count of using a vehicle to facilitate the intentional discharge is appropriate. The question was whether Oklahoma's drive-by shooting statute had the same meaning under Oklahoma law on May 2, 1997, the day of appellant's criminal conviction for two counts of violating the statute.

HELD: (1) The protections of the double jeopardy clause extend, not only to successive prosecutions for the same offense, but also to multiple punishments for the same offense. Burleson claims the statute precludes multiple convictions arising out of one shooting spree.

(2) Under the AEDPA, the circuit may not grant a writ with respect to any claim adjudicated on the merits by a state court, unless the state court decision resulted in a decision that was contrary to, or involved in unreasonable application of, clearly established federal law as determined by the Supreme Court, or resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in state court.

(3) Whether or not a rule of state law may be applied retroactively is a pure state law question. The general rule under Oklahoma law is that new rules should be only applied prospectively, especially on collateral review.

(4) Locke is the Oklahoma court's substantive interpretation of a criminal statute, and Teague does not apply. A rule is not new when it is based squarely on a statutory interpretation.

(5) The Supreme Court has clearly established federal law to be applied to the kind of double jeopardy violation presented in this case. That is the Blockburger element test. There can be but one penalty when a statute criminalizes a course of action rather than an individual act. Burleson may be granted habeas relief only if the court is convinced that the OCCA decision was contrary to or unreasonable application of Blockburger. The double jeopardy clause would not have been offended if the Oklahoma legislature intended to allow defendants to be punished multiple times pursuant to the state's drive-by shooting statute for engaging in a single shooting event.

(6) The federal court is bound by a state court's determination of the legislature's intent. The only authoritative construction of the drive-by shooting is found in the subsequently decided case of Locke. In this case, the defendant's constitutional rights are intertwined with the construction of the state statute, the state court was silent as to the statute's proper construction, the criminal courts have never previously interpreted the statute, and the highest criminal court has subsequently construed the statute in a manner that implicates the defendant's constitutional rights. Therefore, the circuit decided to certify the predicate state law question to the OCCA.

Habeas Corpus (28 U.S.C. § 2254) - Death Penalty, Evidentiary Hearing;

Ineffective Assistance of Counsel - Penalty Phase;

Aggravating Factors - Avoid Arrest, Heinous and Cruel

Romano v. Gibson, 00-6289 (January 25, 2002)

Romano appealed the denial of his § 2254 action, petitioning from his Oklahoma first degree murder conviction and death sentence.

HELD: (1) Romano claims he received ineffective assistance at the penalty phase when his lawyers presented his sister's testimony that he had sexually abused her and their siblings for years. He claims the federal court should have granted an evidentiary hearing. Where he failed to develop this factual basis in state court, grant of a federal evidentiary hearing is limited. To prove ineffective assistance, Romano must show deficient performance and prejudice. The strategy in the second stage was to portray Romano as a redeemed person who deserved a punishment less than death. Defense counsel presented three jail guards who testified that he was a model prisoner. Six ministers testified for Romano. His 15 year old brother and his mother testified in his behalf. So there was no question the defense strategy specifically included presenting a sexual abuse testimony. The OCCA held that this strategy was not unreasonable. The circuit agreed.

(2) The jury found Romano had killed Thompson to avoid being arrested or prosecuted for robbing him. The aggravator focuses on the defendant's intent.

(3) Romano's claim, that there was insufficient evidence to support the heinous, atrocious or cruel aggravator, is not an issue properly before the circuit. The district court did not grant a certificate of appealability on the issue. Nor did the circuit. At any rate, the OCCA's determination that there was sufficient evidence to support this aggravator was reasonable.

Bribery;

Motion to Suppress - Review Standard;

Wiretap - Enumerated Offenses, General Conspiracy

United States v. Smart, 00-6458 (January 29, 2002)

Smart was convicted of bribing a government official in violation of 18 U.S.C. § 666(a)(2).

HELD: (1) Judges may issue ex parte orders authorizing interception of wire communications where an application from authorized investigators shows probable cause of the commission of one or more enumerated offenses. On appeal from a motion to suppress evidence obtained pursuant to a wiretap, the court accepts the district court's factual findings unless clearly erroneous, and will review questions of law de novo. The issue of whether references to non-enumerated offenses in the application and orders invalidate the orders is entirely one of law and the circuit reviews de novo. However, a wiretap authorization order is presumed proper, and a defendant carries the burden of overcoming this presumption. The wiretap order authorized investigation into a general conspiracy under 18 U.S.C. § 371. However, § 371 was not specifically mentioned on the list of offenses. At least one district court has explicitly held it is permissible for an order to include authorization to wiretap for evidence of a violation of 18 U.S.C. § 371. A plausible interpretation of the order was that it authorized investigation of a conspiracy to commit either or both of two other explicitly enumerated offenses. The wiretap was not merely based on a suspicion of a general conspiracy. This case does not present the situation where a wiretap order included only § 371, without additional explicitly enumerated offenses.

(2) The wiretap statute allows judges to authorize a wiretap when an application shows probable cause to suspect an enumerated offense. Including references to non-enumerated offenses will not invalidate a wiretap application or order. However, the documents in this case were somewhat misleading. But the failsafe of the misleading documents lies in the limited scope of the offenses actually approved for wiretap investigation.

(3) Accordingly, the Circuit held that an incorrect description of suspected non-enumerated offenses does not invalidate the wiretap order where the authorization to wiretap itself was limited to only enumerated offenses. The question of whether an order authorizing wiretapping in the investigation of both enumerated and non-enumerated offenses would survive review was not reached.

Bribery - Sufficient Evidence;

Wiretap - Necessity, De Novo Review Standard, Disclosure of Information Obtained in a Complaint;

Role in Offense

United States v. Vanmeter, 00-6456 (January 29, 2002)

Vanmeter was convicted of accepting a bribe in violation of 18 U.S.C. § 666. He argued on appeal that references in the wiretap application and orders to crimes not enumerated in 18 U.S.C. § 2516 requires suppression of evidence. This issue was decided in United States v. Smart.

HELD: (1) There is confusion as to the appropriate standard of review for determining necessity for a wiretap. The court could find no Tenth Circuit case, aside from Armendariz, that has ever reviewed the necessity question for abuse of discretion, rather than de novo. In Castillo-Garcia, the court developed a predictable procedure for employing de novo review. The court clarified that the standard of review should be de novo. Congress has required investigators to show the necessity of any wiretap, by providing a full statement as to whether other investigative procedures have been tried and failed, or why they would be unlikely to succeed.

(2) Title III does not forbid the government from making a public disclosure of criminal charges, even if the charges include information obtained from wiretapping, unless the criminal proceedings themselves are non-public. Whether briefly quoting intercepted communications in the criminal complaint is a permissible disclosure under Title III presents a legal question subject to de novo review. Establishing probable cause before a magistrate to arrest suspected criminals is at the core of law enforcement officers' official duties.

(3) The court reviews sufficiency of the evidence for clear error. The conviction is under 18 U.S.C. § 666. This statute provides that whoever, being an agent of a state or any agency thereof, corruptly solicits anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions, violates the statute.

(4) The guidelines apply a two-level upward adjustment when the defendant was the organizer, leader, management or supervisor of one or more other participants. A determination of a defendant's role in the offense is to be made on the basis of all relevant conduct. The court found no clear error in the upward adjustment.