Habeas Corpus (28 U.S.C. § 2254);
Statute of Limitations (AEDPA) - Equitable Tolling;
Motion to Withdraw Plea - Part of Direct Appeal Process or Collateral
York v. Galetka, 01-4214 (January 2, 2003)
The district court dismissed York's § 2254 petition, concluding that he had failed to file the petition within the one-year statute of limitations, and was not entitled to equitable tolling. The circuit concluded that equitable tolling should have been applied and remanded to the district court.
HELD: (1) The one-year habeas limitations period typically begins to run from the date on which a petitioner's conviction becomes final by the conclusion of direct review. The time a petitioner spends pursuing state-post conviction or other collateral review is not counted toward this one-year period. This statutory tolling is not available during the time period a prior federal habeas proceeding is pending. York made a diligent effort to present his claims in federal court within the limitations period, but found himself barred by the rule in Duncan, a case decided after dismissal of his second federal habeas petition, and during the pendency of his third federal petition the dismissal of which was before the court in this appeal. Because the court concluded that a strict application of Duncan under the circumstances of the case would be inequitable, the court applied equitable tolling and remanded to permit the district court to consider the merits of York's claims.
(2) While York's state court post-conviction proceedings had tolled the one-year statute of limitations, the same could not be said for the time period York spent waiting for the federal district court to decide his second habeas petition. Under the rule developed in Duncan, York's third federal habeas petition was filed 32 days late.
(3) The court had to decide whether York's motion to withdraw his guilty plea was part of the direct appeal process or part of the state collateral review process. Typically, a motion to withdraw a guilty plea is considered part of the direct appeal process, but here, York did not file the motion until nearly 12 years after he was convicted. By the time he did so, he had already filed two state habeas proceedings and one federal habeas. The state court itself characterized his motion as a post-conviction motion. Therefore, that motion should be treated as part of the state collateral review process, rather than as part of direct review.
(4) York's timeliness problem is that the one-year limitations period was not tolled during the time his second federal habeas petition was pending. In Duncan, the Supreme Court created the "no tolling" rule for prior federal habeas petitions. Concurring justices suggested that a federal court might apply equitable tolling to relieve petitioners, like York, whose prior petitions had been dismissed in order to exhaust state remedies. The circuit has recognized that equitable tolling of the one-year statute of limitations is available in rare and exceptional circumstances. Gibson v. Klinger; Hall v. Scott. York diligently pursued his claims. Duncan was not decided until over a year after York filed his third federal habeas petition. The district court should have applied equitable tolling.
Expert Testimony - Discretion, Reliability, Relevance, Procedure to Determine;
Instructions - Review Standard, Scheme or Artifice to Defraud, Unanimity (General and Special);
Mail Fraud - Instructions, Scheme to Defraud, Scheme to Obtain Money by False Pretenses;
Unanimity (Jury) - General or Specific, Indictment Charging in Conjunctive, Mail and Wire Fraud;
Guideline Sentence - Review;
Double Counting - Enhancements Under §2F1.1;
Apprendi - Not Apply to Sentencing Factors That Do Not Increase Statutory Maximum
United States v. Fredette, 01-8090 (January 2, 2003)
(Susan L. Foreman, Boulder, Colorado)
Fredette was convicted of conspiracy to commit mail and wire fraud and substantive acts based on duping automobile dealerships into purchasing worthless fuel vouchers for their customers.
HELD: (1) The court reviews a district court's decision to admit expert testimony for abuse of discretion. The law grants the district court the same broad latitude when it decides how to determine reliability as it enjoys with respect to its ultimate reliability determination. Kuhmo Tire. The requirements of reliability and relevance apply to all expert testimony. Daubert. The district court did not abuse its discretion in excluding the proposed testimony which was both unreliable and irrelevant.
(2) The court reviews jury instructions de novo to determine whether, as a whole, the instructions correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standards. The district court's decision to give a particular jury instruction is reviewed for abuse of discretion. Fredette's proposed instruction defined "scheme or artifice to defraud" as "deliberate conduct intended to or reasonably calculated to deceive persons of ordinary prudence and comprehension." Another instruction stated that "in order to prove fraud, the government must show that a person of ordinary prudence would rely on a representation or deception in making a decision about an important matter or transaction." Fredette is correct that the government must show conduct intended or reasonably calculated to deceive persons of ordinary prudence or comprehension. But the circuit has not mandated that these exact words appear in the district court's instructions to the jury. The district court used the applicable instructions from Federal Jury Practice and Instructions. The district court did not abuse its discretion.
(3) The Sixth Amendment guarantees a federal criminal defendant the right to a unanimous jury verdict. The crime of mail fraud consists of two separate but interrelated offenses, a scheme to defraud and a scheme to obtain money by means of false or fraudulent pretenses. The same is true for the wire fraud statute. Fredette did not propose a specific unanimity instruction. Therefore, review for lack of such instruction is under the plain error standard. The district court did issue a general instruction that the verdict of the jury must be unanimous. It is assumed that a general instruction on the requirement of unanimity suffices to instruct the jury that it must be unanimous on whatever specifications it finds to be the predicate of the guilty verdict. When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, a general verdict stands if the evidence is sufficient with respect to any one of the acts charged. The evidence showed that Fredette both devised a scheme to defraud and devised a scheme to obtain money by false pretenses. The decision not to give a specific unanimity instruction was not plainly erroneous.
(4) Fact findings made at sentencing are reviewed under the clearly erroneous standard, but the district court's legal interpretation of the guidelines is reviewed de novo.
(5) Fredette objected to application of the enhancements under §2F1.1(b)(2) and subsection (3) as impermissible double counting. Fredette must show that these necessarily overlap, are indistinct, and serve identical purposes. He cannot do so.
(6) Plain error review applies to a claim under Apprendi. This circuit has held that Apprendi does not apply to sentencing factors that do not increase the statutory maximum.
Felon-With-A-Firearm (§ 922(g)) - Interstate Commerce Element;
Reckless Endangerment (§3C1.2) - Clear Error Review;
Firearm Enhancement - Possession in Connection With Another Offense, Escape;
Guideline Interpretation - Review, Uniformity, Not Rely on State Law on Escape;
Escape - Continuing Offense;
Sentencing - Findings as to Objections (Rule 32);
Remand - Ministerial Act, Not Take Controverted Matters Into Account;
Fine - Failure to Object, Plain Error Review
United States v. Brown, 02-5007 (January 6, 2003)
Brown was convicted of felon in possession of a firearm.
HELD: (1) Brown argues his conviction should be overturned because § 922(g) is unconstitutional since the government was not required to prove the gun possession had any actual or substantial effect on interstate commerce. The court reviews challenges to the constitutionality of a statute de novo. This argument is foreclosed by Tenth Circuit's prior decisions which one panel cannot overrule.
(2) The court reviews, under the clearly erroneous standard, the district court's finding that Brown's flight constituted reckless endangerment. Section 3C1.2 provides for an increase by two levels when the defendant recklessly creates a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. The record fully supports the court's findings.
(3) Brown also urges that the district court erred in enhancing his sentence under §2K2.1(b)(5) for possessing a firearm in connection with another felony offense. The court reviews a district court's interpretation of the guidelines de novo, and its fact findings for clear error. The guideline provides little direction regarding the nexus required between firearm possession and the felony offense. Judicial precedent interpreting § 924(c) does not control. Generally, if the weapon facilitated or had the potential to facilitate the underlying felony, the enhancement is appropriate. The enhancement is not appropriate if possession of the weapon is coincidental or entirely unrelated. There was no evidence that Brown had the gun at the actual time of escape, and the escape was complete after he left the jail successfully. The circuit refused to rely on state law definitions, because uniformity in sentencing is the purpose of the guidelines. Therefore, the court did not rely on the state's assessment of whether escape is a continuing offense or is complete at the moment the escapee successfully escaped from custody. For purposes of the enhancement, every escape is sufficiently continuing, such that possession of a gun subsequent to the initial departure from custody can qualify as being in connection with the escape. Escape is a continuing offense under federal law, 18 U.S.C. § 751. The issue of whether escape is a continuing offense under Oklahoma law has not been squarely addressed or decided. The district court's legal conclusion regarding the continuing nature of an escape is correct. The court also correctly applied the law interpreting the "in connection with" requirement.
(4) Brown argues that the district court failed to make particularized findings in response to his objections to the PSR, and failed to reduce those findings to writing as required by Rule 32(c)(3)(D). The rule requires a defendant to communicate in writing his objections to the PSR. Then the probation officer must submit an addendum. Except for any unresolved objection, the court may, at sentencing, accept the PSR as its findings of fact under Rule 32(b)(6)(D). Rule 32(c)(1) governs the district court's obligations at sentencing with regard to the defendant's objections. The court must rule on any unresolved objections to the presentence report. For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account or affect sentencing. A written record of these findings and determinations must be appended to any presentence report made available to the Bureau of Prisons.
(5) This court has held that the district court does not meet its burden by simply adopting the PSR as its finding. However, unless unresolved objections remain and those objections involve non-perfunctory specific allegations of factual inaccuracy, no controverted matter exists and the district court's fact- finding obligation is not implicated.
(6) Arguments that merely challenge the application of the guidelines to the facts, and not the facts themselves, do not trigger any obligation on the part of the district court to make specific findings.
(7) Generalized, perfunctory objections are not specific allegations of factual inaccuracies, and are insufficient to controvert a matter such that the district court's fact-finding obligation is invoked. At sentencing, Brown claimed he did not run from police, he did not possess a gun, and he was not in King's apartment. The district court opted not to allow the objections at all, and thus did not rule upon them, noting that the jury found him guilty. None of the objections raised by Brown was among objections to the PSR filed earlier. Because these factual objections were an unbelievable story contradicting the entire body of evidence before the court and the verdict of the jury, the district court did not abuse its discretion in refusing to allow them.
(8) Brown also challenged the support for the reckless endangerment enhancement, but neither of his objections was sufficient to invoke the fact-finding requirement. The material fact was whether Brown left a gun behind in the presence of children as he ran from police. No objection was raised against this fact.
(9) But two allegations of factual inaccuracy gave the circuit pause. One inaccuracy was a hearsay statement that Brown was heavily involved in drug trafficking which he denied at sentencing. The other inaccuracy was whether Brown possessed rock cocaine during an arrest which he denied, and he was not charged with that. These objections were specific allegations sufficient to implicate Rule 32(c)(1). Although the facts were not relied upon by the district court in arriving at the sentence, if the disputed facts are not important to the sentencing determination and will not be relied upon in sentencing, the district court should say so. Therefore, the court remanded to the district court for the ministerial task of entering a determination that it did not take the controverted matters into account.
(10) Brown's failure to object to the fine is reviewed for plain error. Imposition of a fine is required except where the defendant establishes he is unable to pay and is not likely to become able to pay. Brown had that burden. There was no plain error in the district court's imposition of a fine.
Theft of Firearm (18 U.S.C. § 922(u);
Stolen Firearm Enhancement (§2K2.1(b)(4);
Guideline Interpretation - Amendments
United States v. Goff, 02-1215 (January 13, 2003).
(Warren R. Williamson, FPD, Denver, Colorado)
Goff was convicted of theft of a firearm from a federally licensed firearm dealer in violation of 18 U.S.C. § 922(u). He challenges the district court's application of §2K2.1(b)(4), providing for a two-level enhancement if any firearm was stolen. The question is whether this enhancement applies when the only offense of conviction is theft of a firearm. Prior to November 1, 1995, application note 12 of §2K2.1 stated that if the defendant is convicted of § 922(i), (j), or (k) or offenses involving stolen firearms or ammunition, and is convicted of no other offense subject to this guideline, do not apply the adjustment because the base offense level takes such conduct into account. In 1995, application note 12 was amended to read that: if the only offense to which §2K2.1 applies is an offense such as § 922(u), and the base offense level was determined under subsection (a)(7), do not apply the adjustment unless the offense involved a firearm with an altered or obliterated serial number. The amendment was intended to clarify that application note 12 applies only to cases in which the base offense level is determined under §2K2.1(a)(7). There is no note suggesting that the two-level enhancement should not apply when the base offense level is determined pursuant to §2K2.1(a)(2). The circuit's Rowlette decision was based on the earlier form of application note 12. Therefore, it does not apply to the amended note. Six other circuits have affirmed §2K2.1(b)(4) enhancements under the amended note. Since Goff was convicted of an offense in which a firearm was stolen, and since his base offense level was determined pursuant to §2K2.1(a)(2) and not §2K2.1(a)(7), the district court's imposition of the two-level enhancement was proper.
Motion to Suppress - Standing, Review Standard;
Home Search - Exigent Circumstances, Threat to Public Safety;
Plain Error - Fail to Object;
Admission of Evidence - Testimony About Methamphetamine Odor
United States v. Rhiger, 01-2246 (January 14, 2003)
(Benjamin A. Gonzales, FPD, Albuquerque, New Mexico)
Rhiger was convicted of conspiring to manufacture methamphetamine and of possessing methamphetamine with intent to distribute.
HELD: (1) The first question is whether Rhiger has standing to object to the search of Brown's house. He must show a subjective expectation of privacy. Although Rhiger did not permanently reside with Brown, he had known Brown for two weeks and stayed overnight a couple of times. He was a social guest. Under Minnesota v. Carter, a social guest's expectation of privacy is constitutionally protected.
(2) The next question is whether the district court properly denied the motion to suppress evidence based on its determination that exigent circumstances justified the warrantless entry. The court reviews fact findings under the clearly erroneous standard, and the ultimate question of reasonableness is reviewed de novo. Under the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. The government urges that exigent circumstances existed because agents believed an active methamphetamine lab in the home created a threat of explosion to the inhabitants, the agents and the neighborhood. Threats to public safety are widely accepted as one of the exigent circumstance exceptions to the Fourth Amendment's warrant requirement. The government bears the burden of establishing exigency. The circuit agreed that exigent circumstances existed, after evaluating the facts under the objective standard of a prudent cautious and trained officer. Federal agents had reasonable grounds to believe there was an immediate need to protect the public, their search was not motivated by an intent to arrest and seize evidence, and there was a reasonable basis, approaching probable cause, to associate an emergency with the Brown residence.
(3) Whether the district court erred in permitting the agent to testify that he detected the odor of methamphetamine on Rhiger's clothing when arresting him is reviewed under the plain error standard due to failure to object. The government presented more than enough evidence for a jury to determine Rhiger was guilty of the charges against him and the absence of the challenged testimony would not have altered the results. (Judge Briscoe concurred and dissented).
Guilty Plea - Waive Non-Jurisdictional Defects;
Obstruction of Justice - Review, Dunnigan Findings, Suppression Hearing;
Acceptance of Responsibility
United States v. Hawthorne, 01-3357 (January 21, 2003)
Hawthorne was charged with possession with intent to distribute crack and felon in possession of a firearm. He moved to suppress evidence. This motion was denied. He entered an unconditional guilty plea. Finding the defendant committed perjury during the suppression hearing, the district court enhanced his sentence under §3C1.1 and declined to reduce his sentence for acceptance of responsibility under §3E1.1.
HELD: (1) The defendant's unconditional guilty plea results in waiver of all non-jurisdictional defenses such as denial of the suppression motion.
(2) The court reviews the district court's fact findings as to obstruction of justice under the clearly erroneous standard, and reviews de novo the district court's legal interpretation of the guidelines. The court reviews for clear error the district court's refusal to grant the acceptance of responsibility reduction.
(3) The Supreme Court in Dunnigan addressed imposition of the obstruction of justice enhancement. The Tenth Circuit's standards are stricter than those in Dunnigan as to the adequacy of the court's findings. Although greater specificity here would have been helpful, the court's findings were adequate. As to materiality, the district court implicitly found the testimony about the voluntariness of his confession to be material. The more difficult question is whether the court complied with the requirement to adequately identify which statements were perjurious. The circuit concluded that the district court's references, as considered in context, satisfy the specificity requirement.
(4) The next question is whether the testimony was in fact perjurious or whether it was a good-faith attempt to explain his interpretation of the circumstances under which he signed a waiver of rights. The district court could properly find that the defendant's testimony was not just a good faith attempt to explain what had happened.
(5) The defendant also challenges the enhancement for obstruction based on perjury at a suppression hearing. This court in Alexander affirmed the enhancement for perjury at a suppression hearing. In Alexander, the court observed that the difference between perjury at trial and at such hearing may be a distinction without a difference. Other circuits have permitted enhancements for perjury at suppression hearings.
(6) As to acceptance of responsibility, the commentary states that conduct that results in an enhancement under §3C1.1, ordinarily indicates the defendant has not accepted acceptance of responsibility. Judge Henry concurred in part and concurred on other grounds in part.
Downward Departure - Appellate Jurisdiction;
Acceptance of Responsibility (§3E1.1) - No Compromise to One Level Enhancement;
Plain Error - Absence of Circuit Precedent, Constitutional or Structural Error, Olano Factors, Substantial Rights, Overlapping Guideline Ranges,
Discretion Turns on Whether Sentence Length Would Be Significantly
Reduced
United States v. Brown, 01-5189 (January 22, 2003)
(Barry L. Derryberry, FPD, Tulsa, Oklahoma)
Brown pleaded guilty to bank fraud, but before her sentencing, forged two letters of support. At sentencing, the court imposed a two-level enhancement for obstruction of justice and a one-level reduction for acceptance of responsibility. The district court refused a departure based on diminished capacity, imposed 24 months imprisonment and ordered $71,000 in restitution.
HELD: (1) Brown challenges the district court's refusal to depart downward under §5K2.13 on the basis of diminished mental capacity. The circuit has jurisdiction only in the rare circumstance that the district court stated it did not have authority to depart. In this case, the district court acknowledged its authority to depart and declined to do so. The circuit lacks jurisdiction to review this.
(2) Brown also challenges the one-level downward adjustment for acceptance of responsibility. There was no objection at sentencing so review is for plain error. The circuit found the district court erred in concluding that §3E1.1 permits a compromised one-level downward adjustment for acceptance of responsibility. The court looked at the guideline's text and applicable precedent to interpret the guideline. Four circuits hold that §3E1.1 mandates either granting the acceptance and giving the full two-level adjustment or denying the acceptance and granting no adjustment. The government here argues that §3E1.1 permits a one-point adjustment, relying on note 4 of the commentary and a district court opinion. The circuit recognized the value of affording the district court discretion, but could not hold that §3E1.1 permits discretion to issue a compromised adjustment. Either the defendant qualifies for the two-level acceptance of responsibility adjustment or gains no adjustment at all, based on the policy of the guidelines and the text. Given that the district court erred, the question is whether the error is plain. The absence of circuit precedent does not prevent the clearly erroneous application of statutory law from being plain error. The circuit concluded that the district court's error was plain. Whether the district court's error affected substantial rights is a closer question. With the one-level reduction, Brown faced a guideline range of 21 to 27 months, and she was sentenced to 24 months imprisonment. This sentence was within the range established if she received the two-level adjustment.
(3) The Supreme Court in Olano stated there are two categories of errors which may not require a prejudice showing, those that are presumed prejudicial, and a special category of forfeited errors that can be corrected regardless of their effect on the outcome. Brown does not allege either a constitutional error or a structural error. An error that may have led to a relatively minor decrease in the defendant's sentence should not be presumed prejudicial. Therefore, Brown has to prove prejudice.
(4) But where the sentencing error causes an increase in the applicable offense level, the fact that the guideline ranges overlap does not make a plain error harmless. If the circuit remanded, Brown's sentence might not change. Indeed, it is unlikely the district court would be favorably disposed toward a reduced sentence. However, since the district court chose a sentence at the center of the guideline range, it could do so again, shortening Brown's sentence by three months.
(5) But there is an additional justification for concluding that no substantial rights were affected. Neither this nor any other circuit has extended the rule of presuming that an error affects substantial rights to cases where an incorrect application of the guidelines led to application of a lower offense level, but still yielded a sentence within the range permitted by statute, a sentence that was erroneous but not illegal. In Battle, the Tenth Circuit, on plain error review, held that the defendant had not shown his substantial rights were affected when the district court's error caused the defendant to receive an offense level two levels below the correct level. In that case, the defendant was not prejudiced by the district court's application of a lower offense level.
(6) Nonetheless, the court assumed without deciding that the third prong was satisfied, but concluded that the fourth prong of the plain error analysis was not met. The fourth element calls for plain error affecting substantial rights that seriously affects the fairness, integrity, or public reputation of judicial proceedings. In that situation, the court may, in its discretion, correct the error. Brown has the burden of proof. A review of decisions considering whether to correct unobjected-to-sentencing errors reveals that the key concern has been whether correct application of the sentencing laws would likely significantly reduce the length of the sentence. When it would, courts have not hesitated to exercise their discretion. Conversely, when applying the proper rule would not likely result in a significant reduction in the length of sentence, courts have chosen not to exercise their discretion to correct plain sentencing errors. In this case there was a plea agreement, subsequent fraud on the court, the grant of a one-level departure in the defendant's favor that was legally erroneous but led to imposition of a sentence within the range prescribed by Congress, no objection at trial, and a close question as to whether substantial rights were affected. The PSR had recommended that Brown receive no points for acceptance, and the government opposed a two-level reduction. It is not likely Brown would receive a sympathetic ear from the district court. The district court's error does not represent the kind of error that the circuit should go out of its way to correct.
Habeas Corpus (28 U.S.C. § 2254) - Death Sentence, AEDPA Applies;
Sufficiency of Evidence - Question of Law, Apply State Law Substantive Elements of Offense, Infer Intend Death of Victims;
Instruction - Impute Malice From One Defendant to Another;
Prosecutorial Comments - Denial of Specific Constitutional Right, Denial of Fair Trial, Brecht Exception to Harmless Error;
Procedural Bar;
Destruction of Exculpatory Evidence - Potential Evidence, Bad Faith;
Eighth Amendment - No Death Penalty For Felony Murder When Defendant Did Not Kill, Intend Killing;
Murder - Malice Murder Distinguishes From Felony Murder
Torres v. Mullin, 00-6334 (January 23, 2003)
Torres was convicted of first degree murder and first degree burglary, received 20 years on the burglary and a sentence of death on the murder convictions. He filed a § 2254 petition which was denied.
HELD: (1) The AEDPA and its standards apply.
(2) A challenge to the sufficiency of the evidence may be raised in a § 2254 action. The question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The inquiry is based upon the entire record. Amendments to the habeas corpus statutes in the AEDPA have added an additional degree of deference to a state court's resolution of a sufficiency of the evidence question. In this circuit, there is some debate as to whether a claim of sufficiency of the evidence should be treated as a question of law or one of fact. The court concluded the challenge should be reviewed as a legal question.
(3) The circuit applies Oklahoma law regarding the substantive elements of the offense. A jury may infer intent from a defendants' objective acts, and infer that a defendant intends the consequences which he announced a desire to accomplish. The record here contains no evidence that Torres expressed a desire to injure or kill the victims. As to an aider and abettor's objective acts, the evidence of Torres' conduct is susceptible to interpretation. Notwithstanding the lack of evidence of an announced intent to kill the victims, the record suggests that a rational juror could conclude Torres had the requisite intent. The circuit could not conclude that the OCCA's application of Jackson v. Virginia was objectively unreasonable.
(4) Torres also claims the evidence was insufficient to support the burglary conviction, but the OCCA's analysis did not constitute an unreasonable application of Jackson.
(5) The jury was instructed on the law of aiding and abetting and of the elements of malice murder. The OCCA concluded that, taken as a whole, the instructions were proper. The circuit was not persuaded that the instructions would have allowed the jury to impute malice from one defendant to another.
(6) When prosecutorial misconduct directly affects a specific constitutional right, such as the presumption of innocence or privilege against self- incrimination, a habeas petitioner need not establish that the entire trial was rendered unfair, but rather that the constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right. The comment, "Do you think we're trying to prosecute somebody that's innocent?" was improper, but did not so prejudice the presumption of innocence as to result in the denial of that right.
(7) In order to be entitled to relief on a claim that prosecutorial misconduct violated his right to due process, a petitioner must establish that the prosecutor's misconduct was sufficiently significant to result in the denial of the right to fair trial. The remaining remarks did not render Torres' trial fundamentally unfair.
(8) Torres claims he is nonetheless entitled to relief based on the footnote 9 exception to harmless error in Brecht. The circuit discussed this narrow exception in Duckett v. Mullin (2002). The same prosecutor was involved in this case as in Duckett. But the court could not conclude that the misconduct so infected the public integrity of the proceedings as to warrant habeas relief.
(9) The claim that the prosecution pressured a witness to testify falsely is procedurally barred.
(10) Torres also claims the prosecution destroyed latent fingerprints. Destruction of potentially useful evidence does not constitute a due process violation unless the petitioner can show that the destruction was accomplished in bad faith. Arizona v. Youngblood. The OCCA concluded that Torres failed to establish bad faith, and this conclusion was not unreasonable.
(11) The Eighth Amendment does not permit imposition of a death sentence upon a defendant who did not himself kill, attempt to kill, or intend that a killing take place or that lethal force be employed, or unless the defendant was a major participant in the underlying felony and acted with reckless indifference to human life. This case does not involve felony murder. Instead, Torres was tried on malice murder counts.
Motion to Suppress - Review Standard;
Arrest - Outside Officers' Jurisdiction, Reasonable Suspicion, Pat Down, Extended Detention
United States v. Mikulski, 01-4169 (January 31, 2003)
Mikulski was charged with possession of stolen mail in violation of 18 U.S.C. § 1708. The district court denied his motion to suppress. He entered a conditional plea of guilt and received a 16 month sentence.
HELD: (1) In reviewing the denial of a motion to suppress, the court views the evidence in the light most favorable to the district court's determination, and accepts the fact findings of the court unless they are clearly erroneous. The ultimate determination of reasonableness is reviewed de novo.
(2) Mikulski claims that when Utah County officers decided to venture into Salt Lake County to locate Johnny Green, they were required to notify Salt Lake County authorities pursuant to Utah code Ann, § 779-3. Before the district court, the government admitted that the officers did not comply with Utah state law. The district court determined that the violation did not rise to the level of a federal constitutional violation. In Green, the circuit noted that the exclusionary rule is only concerned with constitutional violations, and distinguished its Ross case. Green involved a warranted search. Ross held that a warrantless arrest outside the officer's jurisdiction is presumptively invalid. The officers' violation of state law is not, without more, necessarily a federal constitutional violation. The Seventh Circuit has recently distinguished Ross in Pasiewicz. The situation here is analogous to Pasiewicz. Nonetheless, the circuit remained troubled because there was no allegation of fresh pursuit. The Utah County detectives had ample time to coordinate the investigation but never considered the requirement under Utah law, and the officers knew they were outside their jurisdiction because they contacted Salt Lake authorities after the arrest. A blatant disregard of state law and the chain of command weighs on the scale of reasonableness. Despite the apparent violation of state law, the circuit could not say that the officers' actions amounted to a federal violation.
(3) Mikulski contends the detectives lacked reasonable suspicion when they approached and questioned him. The district court found the initial interaction to be consensual and the circuit agreed.
(4) Mikulski next claims the district court erred in determining that the continued questioning and pat down search were supported by reasonable suspicion. The circuit concluded that the district court's fact findings are not clearly erroneous and agreed with the district court's ultimate determination of reasonableness. An officer may pat down a suspect for weapons when he suspects criminal activity and has a reasonable fear for his own safety or that of others. The officer need not be absolutely certain that the individual is armed. The issue is whether a reasonably prudent under the circumstances would be warranted in the belief that his safety or that of others was in danger. There was a particularized and objective basis for suspecting Mikulski of criminal activities, and the detective's actions during the detention were reasonably related in scope to the circumstances that justified the extended detention.