Second Degree Murder - Malice Aforethought;

Admission of Evidence - Discretion Standard, Error of Law, Prior Bad Acts, Rule 404(b) and 403, Effect of Stipulation

United States v. Tan, 00-2300 (July 2, 2001)

The government took an interlocutory appeal pursuant to 18 U.S.C. § 3731.

The defendant was driving his pick up truck within the borders of the Navajo Indian reservation when a collision occurred between his truck and two motorcycles, resulting in the death of one of the motorcycle riders and serious injury to another. The defendant had been convicted of driving while intoxicated seven times since 1985. Four of the convictions were in Navajo tribal court and three in New Mexico state court.

The defendant was charged with second degree murder and assault resulting in serious bodily injury. Before trial he filed a motion in liminie. The court granted the motion, finding that the prior drunk driving convictions were not offered for a proper purpose under Rule 404(b) and were more prejudicial than probative.

HELD: (1) In order to prove that the defendant acted with malice aforethought, a required element of second degree murder, the government must show that he engaged in conduct which is reckless and wanton, and 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.

(2) The decision to exclude evidence is reviewed for abuse of discretion. A district court abuses its discretion if its decision is based upon an error of law. Evidence of other bad acts is properly admitted if the evidence is offered for a proper purpose, is relevant, the probative value is not substantially outweighed by its potential for unfair prejudice, and the district court upon request instructs the jury to consider the evidence only for the purpose for which it was admitted. If the other act evidence is relevant and tends to prove a material fact other than the defendant's criminal disposition, it is offered for a proper purpose under Rule 404(b) and may be excluded only under Rule 403. Intent is the issue here. There is no evidence from which the defendant's malice can be readily inferred other than his numerous prior drunk driving convictions. The circuit distinguished its earlier decision in Soundingsides. The circuit concluded that prior drunk driving convictions, offered to prove the malice element of second degree murder resulting from an alcohol related vehicular homicide, are offered for a proper purpose under Rule 404(b). The district court's determination was erroneous as a matter of law.

(3) Other act evidence, that is relevant and offered for a proper purpose under Rule 404(b), must still survive the Rule 403 balancing test in order to be admitted. The district court has considerable discretion in performing this balancing test. The district court's Rule 403 conclusion was based in part on its previous erroneous determination that the convictions were not offered for a proper purpose. On remand, the district court must conduct a new balancing test with the understanding that the evidence was offered for a proper purpose. In conducting that balancing test, the circuit stressed that unfair prejudice must do more than simply damage the defendant's position at trial. Relevant evidence which the government introduces is, by its nature, detrimental to a defendant. Under Rule 403, evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from it judgment as to his guilt or innocence of the crime charged. Even if this type of prejudice is found, it must substantially outweigh the probative value of the evidence.

(4) At the motion hearing, the defendant attempted to dilute the probative value of his prior drunk driving convictions by stipulating that he knows it is dangerous to drive while intoxicated. But this case is different from the Supreme Court's Old Chief decision where, here, the defendant is not stipulating to an element of the charged crime, but only stipulating that he knows driving drunk is dangerous. In order to show malice, the government must show reckless and wanton disregard for human life. Old Chief does not require exclusion of other crimes evidence where there is a stipulation to an element of the charged crime, where the evidence is offered to prove an element other than felony/convict status.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA Governs, AEDPA Review Standard, Evidentiary Hearing;

Ineffective Assistance of Counsel - Deficient Performance and Prejudice, Impeach Witness, Present Witnesses;

Exculpatory Evidence;

Confrontation Clause - Cross-Examination, Harmless Error;

Moore v. Marr, 00-1015 (July 3, 2001)

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

Moore was convicted in 1988 in Colorado of first degree assault, a crime of violence for stabbing, and one count of felony menacing for wielding a gun. He was sentenced to 26 years imprisonment. He sought habeas corpus relief.

HELD: (1) Post-AEDPA law governs the right to appeal in any case where the notice of appeal is filed after the effective date of the AEDPA. Although AEDPA governs Moore's right to appeal, pre-AEDPA law governs review of his claims. The court reviews legal issues de novo, and the federal district court's findings of fact for clear error. Any findings of fact made by the state courts are entitled to a presumption of correctness.

(2) To show ineffective assistance of counsel, the petitioner must demonstrate deficient performance and prejudice, that is, a reasonable probability that but for counsel's unprofessional errors, the results of the proceeding would have been different. Moore claims that trial counsel was ineffective for failure to impeach Goudie, the prosecution's key witness. Although failure to impeach a key prosecution witness is potentially the kind of representation that is deficient, the court did not examine that issue because it held Moore has failed to demonstrate prejudice in light of overwhelming evidence against him. In addition, counsel's failure to obtain the testimony of another witness concerning the witness' reputation for violence also did not prejudice Moore's defense. Moore testified about Goudie's recent violent history, and the prosecution did not contradict that assertion. Moore used the three weapons he carried with him against the witness. Moore had his own history of violence.

(3) Moore also claims his lawyer was ineffective in failing to obtain the testimony of Klevenz, who would have testified that he broke up the first fight between Goudie and Moore, and that the stabbing resulted from a second fight initiated by Goudie. Moore's trial counsel hired an investigator to find Klevenz, who actively avoided service. Moore, against advice of counsel, refused to ask for a continuance and waive his right to speedy trial to allow counsel to locate the witnesses. This was the sole contributing factor in counsel's inability to locate and present the witnesses.

(4) To be entitled to an evidentiary hearing, Moore would have to make allegations which, if proved, would entitle him to relief.

(5) Moore also claims the prosecution committed a Brady violation by failing to disclose that Goudie had applied for and received victim compensation payments. The prosecution violates a defendant's due process rights when it fails to disclose evidence favorable to the defendant that was material either to guilt or punishment. Brady applies when the suppressed evidence was impeachment evidence. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Prior to trial, Goudie applied for just under $10,000 in victim compensation payments under Colorado law. Moore claims that Goudie's monetary interest in testifying would have affected his credibility to the jury. The circuit concluded Moore had not demonstrated that the victim witness information was material, and therefore did not need to determine whether the information was favorable. Therefore, there was no Brady violation.

(6) The court reviews claims under the Confrontation Clause de novo. Habeas relief is warranted only if the error was not harmless. The trial court had sustained the prosecution's motion to disallow cross examination of Goudie concerning a picture allegedly displaying drugs and drug paraphernalia. The Confrontation Clause does not prevent trial judges from imposing limits on cross examination. The trial court did not limit altogether Moore's ability to cross examine Goudie on drug use.

(7) Because the issues raised were debatable among jurists of reason, Moore's request for a certificate of appealability was granted. However, because the circuit concluded Moore was not deprived of fundamental rights guaranteed by the Constitution, it affirmed the district court's denial of habeas relief.

Wiretap - Necessity;

Warrant - Passage of Time;

Severance;

Firearms - "Possession" Requires "In Furtherance"

United States v. Iiland, 00-5012 (July 3, 2001)

HELD: (1) Electronic eavesdropping by law enforcement officials is governed by the federal wiretap statute. An officer must obtain administrative approval before applying to a judge for a wiretap, the officer must present a written application to the judge, and the judge must make certain findings and issue an order containing specified elements. The statute contains a necessity requirement, under which the officer must establish and the court must find that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried or to be too dangerous. The circuit accepts the district court's fact findings unless clearly erroneous and reviews questions of law de novo. The district court did not err in rejecting the defendant's necessity challenge.

(2) As to the motion to suppress evidence, although there is a passage of time between the suspected illegal activity and issuance of the warrant, here the alleged drug trafficking activity was ongoing over a considerable period of time.

(3) Because the defendant did not seek a severance prior to trial, the court reviews for plain error the failure to sever his case from that of other co-defendants. The requisite showing of prejudice is not made by a complaint that one defendant is less culpable than another, or by an allegation that a defendant would have had a better chance of acquittal in a separate trial.

(4) The defendant was convicted of firearm use or possession under 18 U.S.C. § 924(c). He was convicted under the "possession" prong. The provision of § 924(c) directed to possessing a firearm was added in 1998 in response to the Supreme Court's Bailey decision that addressed the "use" prong of that statute. Former § 924(c) was not intended to punish possession alone. The legislative history of the 1998 amendment, adding possession, expressly clarified that the addition to the statute was not intended to cover every possession of a firearm by one who is also a drug trafficker. The legislative history states that the mere presence of a firearm in an area where a criminal act occurs is not a sufficient basis for imposing the particular mandatory sentence. The firearm must have been possessed to advance or promote the criminal activity. This "in furtherance of" requirement is a slightly higher standard than the "during and in relation to" standard which is part of the "use" and "carry" prongs of the statute. The facts in this case do not meet the "in furtherance" requirement. The defendant possessed the firearm found in his apartment. He kept a large quantity of drugs in a separate storage unit he had rented. There is no evidence connecting the gun to the drug transaction, but only evidence that shows a drug dealer possessed a gun. Therefore, the court reversed the § 924(c) conviction.

Modification of Sentence ( Rule 35(c))

United States v. Gordon K., 00-2189 (July 9, 2001)

(Robert E. Kinney, FPD, Las Cruces, New Mexico)

This juvenile appealed the district court's modification of his original sentence to include an order of restitution, claiming the district court lacked authority under Rule 35(c) to modify the original sentence. The circuit reversed the order of restitution. He had been sentenced to 60 months imprisonment. The court did not order restitution because the presentence report indicated he did not have any income or assets. Over defense objection, the district court found it had jurisdiction to modify the sentence, relying on Rule 35(c). The circuit rejected the government's argument that Rule 35(c), F.R.Cr.P., does not apply to juvenile proceedings. The district court modified the original sentence within the seven day window provided under Rule 35(c). However, the original sentence did not contain an arithmetic or technical error. The advisory committee notes to the rules state that the authority to correct a sentence is intended to be very narrow. In this case, the district court changed its mind about the appropriateness of ordering restitution in light of new information concerning ability to pay.

Civil Rights Action (42 U.S.C. § 1983);

Summary Judgment;

Prison Conditions;

Eighth Amendment - Sewage

Shannon v. Graves, 00-3029 (July 10, 2001)

Shannon appeals from summary judgment in favor of state officials on her conditions of confinement claim under 42 U.S.C. § 1983.

HELD: (1) The circuit reviews the district court's grant of summary judgment de novo. Summary judgment is appropriate when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.

(2) Prison officials are required to insure that inmates receive adequate food, clothing, shelter and medical care under the Eighth Amendment. An inmate making an Eighth Amendment claim must prove the objective component, which requires conditions sufficiently serious so as to deprive inmates of the minimal civilized measure of life's necessities. The subjective component requires that a defendant prison official have a culpable state of mind, that he or she acts or fails to act with deliberate indifference to inmate health and safety. Inmate exposure to sewage can constitute a serious risk to inmate health and safety and satisfy the objective component. There is no requirement that an inmate suffer serious medical problems before the condition is actionable. At the same time, frequency and duration of the condition, as well as measures employed to alleviate the condition, must be considered. Shannon cannot demonstrate that prison officials acted with deliberate indifference. Shannon was provided with protective clothing and gear, and allowed to shower after exposure to sewage.

(3) Shannon's claim concerning fecal contamination of blankets raises a material issue of fact as to the objective component of an Eighth Amendment claim. But nothing in the record indicates that prison officials were aware of this condition prior to her filing her complaint. Shannon has not made a showing of deliberate indifference.

(4) Sewage back-ups at the facility are troubling. But the record does not establish that these incidents are of such frequency and duration as to create an Eighth Amendment violation.

Arson in Indian Country - Elements of Crime, Status of Victim and Defendant;

Indictment - Failure to Charge Element Subject to Harmless Error, Jurisdiction;

Jurisdiction - Subject Matter

United States v. Prentiss, 98-2040 (July 12, 2001)

(on rehearing on banc)(Michael A. Keefe, FPD, Albuquerque, New Mexico)

A divided panel vacated defendant's conviction for committing arson in Indian country, and the court granted rehearing on banc. A majority of the court agrees with the panel that Indian and non-Indian statuses of the victim and defendant are elements of the crime of arson in Indian country under 18 U.S.C. § 81 and § 1152. However, in contrast to the original panel, a majority concludes that the indictment's failure to allege the Indian/non-Indian statuses did not deprive the district court of subject matter jurisdiction and is therefore subject to harmless error review. In so holding, the majority overrules contrary earlier holdings in this circuit. On remand to the panel, the panel should determine whether the failure of the indictment to allege Indian/non-Indian statuses was harmless beyond a reasonable doubt. Dissents were filed from both conclusions.

HELD: (1) Identifying the statuses of the defendant and the victim is often essential in determining what court may hear the case. States may exercise jurisdiction when the defendant and victim are both non-Indian. Tribes may exercise jurisdiction over Indians. Congress may establish federal crimes that may be prosecuted against citizens throughout the nation, including Indian country. It may also create crimes that proscribe only particular conduct occurring within Indian country. The statutes at issue here belong to the latter type. Section 1152 establishes federal jurisdiction over interracial crimes only.

(2) The status of the victim is an element of the crime. The burden of alleging the victim's status is on the government. The status of the defendant should not be treated any differently, and the government must allege the status of the defendant in the indictment as well.

(3) Overruling prior precedent, the court held, however, that failure of an indictment to allege an essential element does not deprive a district court of subject matter jurisdiction. Rather, such failure is subject to harmless error review. An indictment's failure to allege an element of a crime is not jurisdictional in the sense that it affects the court's subject matter jurisdiction. Subject matter jurisdiction comes from 18 U.S.C. § 3231. The elements of the crime of arson in Indian country are jurisdictional only in the sense that, in the absence of those elements, no federal crime exists. A defendant cannot waive the right to challenge an indictment based upon its failure to charge an offense. The court liberally construes an indictment subject to a belated challenge in favor of validity. Structural error occurs in only a very limited class of cases. The Supreme Court recognized in Neder that most constitutional errors can be harmless. The court should apply the harmless error analysis of Chapman v. California.

Failure to File Tax Return;

Failure to Object - Plain Error;

Sentencing Guidelines - One-Book Rule;

Ex Post Facto Law;

Amount of Loss - Tax Loss For Failure to File;

Apprendi - Not Apply to Guideline Determinations

United States v. Sullivan, 00-8012 (July 11, 2001)

(Granting petition for rehearing, withdrawing previous opinion)

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

Sullivan was convicted after jury trial on three counts of willful failure to file a tax return. He was sentenced on all three counts pursuant to sentencing guidelines in effect at the time of sentencing, although the applicable tax offense guidelines had been amended after he committed two of the three counts. He argued on appeal that application of the post-amendment guidelines to all three counts violates the Ex Post Facto Clause.

HELD: (1) In the absence of objection, review is for plain error. The error must have been both obvious and substantial, and seriously affect the fairness, integrity, or public reputation of judicial proceedings. The court reviews de novo questions of law regarding application of the sentencing guidelines, and reviews for clear error the district court fact findings.

(2) The sentencing guidelines contain the one-book rule, which requires that the guideline manual in effect on a particular date shall be applied in its entirety. Every circuit has approved the one-book rule. The guidelines in effect at sentencing should be applied, unless that application would violate the Ex Post Facto Clause. The Ex Post Facto Clause is violated when the court applies a guideline to an event occurring before its enactment, and application of the guideline disadvantages the defendant by altering the definition of criminal conduct or increasing the punishment for the crime. The Sentencing Commission issued a policy statement making explicit that the one-book rule applies to calculations involving multiple counts. The circuits are divided on the question of whether this situation is more like a simple retroactive increase in punishment for a crime, or more like a sentencing enhancement or sentence for a continuing offense spanning an amendment. The circuit held that Sullivan's sentence is more like the latter situations, and does not violate the Ex Post Facto Clause. Only two circuits have held that there is an Ex Post Facto problem in this situation. The Tenth Circuit agreed with the reasoning of six other circuits that the central concern of the Ex Post Facto Clause is fair notice to a defendant that the punishment for a crime has been increased from what it was when the crime was committed. Sullivan was on notice, even when he committed his first two tax offenses, that the guidelines would determine his base offense level from the total tax loss occurring from all years in which he failed to pay taxes. The grouping and relevant conduct provisions gave him notice that his three consecutive failures to file would be considered part of the same course of conduct and would collectively determine his sentence. While failure to file a tax return is not a continuing offense, a series of such failures is the "same course of conduct" under the guidelines.

(3) Section 2T1.1(c)(2) governs calculation of tax loss for the willful failure to file a tax return. If the offense involved failure to file, the tax loss is the amount of tax the tax payer owed and did not pay. The tax loss shall be treated as equal to 20 percent of the gross income less any tax withheld or otherwise paid, unless a more accurate determination of tax loss can be made. The circuit affirmed the district court's use of the 20 percent figure, because the district court found it could not determine a more accurate tax loss figure.

(4) 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 circuit agreed with other circuits that Apprendi does not extend to sentencing guideline factors, because there is no increase beyond the statutory maximum.

Discovery - Selective Prosecution;

Apprendi - Not Render § 841 Unconstitutional;

Instructions - Lesser Included Offense;

Acceptance of Responsibility

United States v. James, 00-3292, United States v. Davis, 00-3344,

United States v. Green, 00-3363 (July 16, 2001)

(Melody Evans, FPD, Topeka, Kansas)

The three defendants were separately convicted of possession with intent to distribute and/or distribution of crack. In these companion cases, they appeal the district court's denial of motions for discovery on the issue of whether they were targeted for arrest and federal prosecution because of their race. Davis was the only defendant to go to trial and raises additional arguments. The others pled guilty after the district court denied the discovery motions.

HELD: (1) A district court's decision to grant or deny a selective prosecution discovery motion is not entitled to any deference on appeal.

(2) A defendant who claims he was targeted for prosecution because of race is entitled to discovery on that claim only if he presents some evidence tending to show the existence of the essential elements of the selective prosecution defense, discriminatory effect and discriminatory intent. United States v. Armstrong (S.Ct.). The defendants need not establish a prima facie case of selective prosecution to obtain discovery, but the showing that is necessary must be a significant barrier to litigation of insubstantial claims because of the heavy burden that discovery can impose on the government. The circuit held the district court properly denied the motions. To prove discriminatory effect in a race-based selective prosecution claim, a defendant must make a credible showing that a similarly situated individual of another race could have been prosecuted for the offense for which the defendant was charged, but was not. The defendant may satisfy the credible-showing requirement by identifying a similarly-situated individual through the use of statistical evidence. A defendant cannot satisfy the discriminatory effect prong by providing statistic evidence which simply shows that the challenged government action tends to affect one particular group.

(3) Defendant Davis also argues that the recent Apprendi decision renders 21 U.S.C. § 841 facially unconstitutional. Review is for plain error. The panel could not overrule its earlier decision in Jones which reinterprets § 841 as setting forth

elements of a drug offense. Actually, Jones represents a return to the circuit's original understanding prior to the federal guidelines.

(4) The decision as to whether there is sufficient evidence to justify a lesser included offense instruction rests within the sound discretion of the district court. Davis argues the district court erred in refusing to instruct on the lesser included offense of § 841, which excludes the school zone element of § 860 under which he was charged. A defendant is entitled to a lesser offense instruction if there is a proper request, the lesser included defense contains some, but not all of the elements of the offense charged, the element differentiating the two offenses is a matter in dispute, and a jury could rationally convict on the lesser offense and acquit on the greater offense. Davis' case is controlled by the Tenth Circuit 1992 Martinez decision in which it held that a defendant who raises an entrapment defense (as did Davis) is not entitled to a lesser included offense instruction because the defendant cannot satisfy the last element of the four part test. If the jury accepts the entrapment defense, an acquittal on the charged offense would not have permitted it to consider the lesser offense because entrapment is a complete defense.

(5) Whether a defendant is entitled to a reduction for acceptance of responsibility under §3E1.1 is a question of fact reviewed under the clearly erroneous standard. An entrapment defense may present one of those rare situations in which a defendant may go to trial and still receive this reduction. But the defendant must still demonstrate acceptance of responsibility, primarily through pretrial statements and conduct before the reduction is warranted.

Illegal Aliens - Reentry (8 U.S.C. § 1326), Elements;

Confession - Vienna Convention Rights, Intoxication, Voluntariness, Miranda Rights;

Vienna Convention - Individually Enforceable Right, Suppression

United States v. Mingares-Alvarez, 00-2004 (July 27, 2001)

(Lissa J. Gardner, FPD, Las Cruces, New Mexico)

Mingares challenges his conviction under 8 U.S.C. § 1326 for illegally reentering the United States after being deported to Mexico for an aggravated felony.

Mingares was stopped for suspicion of driving while intoxicated. He gave the deputy his name and said he was a Mexican citizen without immigration documents. The deputy learned that Mingares had an INS arrest warrant. The deputy did not conduct a roadside sobriety test. A border patrol agent arrived and asked Mingares questions regarding citizenship and previous deportation, and Mingares responded in an incriminating way. At the border patrol station, the agent read Mingares his Miranda rights in Spanish and then Mingares waived those rights. The agent did not inform him of his rights under the Vienna Convention. Mingares signed a sworn statement regarding the elements of the § 1326 offense. The agent did not detect any evidence of intoxication.

HELD: (1) Prior to trial, Mingares moved to suppress his statements to the police claiming that his statements were not voluntary, and alternatively, that his statements should be suppressed because he was not informed of his rights under the Vienna Convention. He contends he was prejudiced because the consul's advice would have influenced him to stand on his constitutional rights rather than make incriminating statements. The district court denied the motion, concluding Mingares was not intoxicated during interrogation, and made a fact-finding that Mingares would not have asserted his consular rights had he known of them. After the district court denied the motion, trial began. A critical issue was whether Mingares had actually left the United States or whether he was merely subject to an order of deportation that was never properly exercised. All the government submitted to rebut Mingares' claim was his sworn statement that he had been deported and reentered, and the agent's testimony describing the interrogation.

(2) In reviewing a motion to suppress, the court accepts the trial court's fact findings unless clearly erroneous, reviews questions of law de novo, and views the evidence in the light most favorable to the prevailing party.

(3) The advisements required by Miranda v. Arizona arise out of the Constitution. Since Mingares did not receive any advisement of rights at the scene of the arrest, those statements he made prior to being transported to the border patrol station were inadmissible pursuant to Miranda and Dickerson. None of those statements was submitted to the jury.

(4) Mingares concedes that he made additional statements at the border patrol station after being advised of his rights, but he claims the circumstances surrounding that waiver were so coercive as to render his statements involuntary. In determining whether a confession is coerced, the court considers age, intelligence and education of the defendant, length of detention, length and nature of questioning, whether the defendant was advised of his rights, and whether the defendant was subject to physical punishment. None of these factors supports the claim that the statements were involuntary.

(5) Nothing in the record demonstrates that the district court clearly erred in concluding that Mingares was not intoxicated when he waived his right.

(6) It remains an open question whether the Vienna Convention gives rise to any individually enforceable rights. Several courts, including the Tenth Circuit, have considered the question and declined to address it directly, concluding that even if the Vienna Convention does create individual rights, suppression is not an appropriate remedy for a violation of those rights. United States v. Chanthadara. The treaty does not expressly incorporate a suppression remedy. In addition, Mingares has not demonstrated he was prejudiced by a violation of the Treaty.

Supervised Release - Jurisdiction, Post-Term Revocation Hearing;

Ex Post Facto - Case Law or Statute

United States v. Bailey, 00-1484 (July 31, 2001)

(Richard M. Stuckey, Denver, Colorado)

Bailey appeals from the district court's order sentencing him to 10 months imprisonment for violation of conditions of supervised release. Bailey claims his supervised release period expired prior to the November 17 hearing, and therefore the court lacked jurisdiction over his supervised release.

HELD: (1) This court will review the district court's jurisdictional determination de novo.

(2) Several courts have held that under the authority of 18 U.S.C. § 3583(e)(3), and Rule 32.1(a)(2), a district court has jurisdiction to conduct a supervised release revocation hearing if the hearing occurs no more than ten days following expiration of the supervised release period.

(3) Congress has subsequently modified § 3583 to more explicitly provide for post-term revocation hearings. The district court had determined that Congress did not intend this modification, § 3583(i), to apply retroactively and had focused on whether subsection (e)(3) allowed the same results. The circuit agreed with the district court.

(4) Technically, because Bailey challenges judicial interpretations of a statute rather than the statute itself, he raises a due process argument rather than one based directly on the Ex Post Facto Clause. He claims that, because § 3583, as it existed in 1990 when he was convicted, did not specifically provide for a post-term revocation hearing, subsequent judicial interpretations of a statute to allow such a hearing violate the Ex Post Facto Clause. Regardless of which clause of the Constitution applies, the Circuit rejected the argument. The court also held that the fact that § 3583 was amended in 1994 was a change that simply made absolutely clear Congress' previous intent.

Motion to Suppress - Review Standard

Search - Warrantless Inspection of Closely Regulated Industry, Automobile Exception, Probable Cause

United States v. Vasquez-Castillo, 01-2023 (July 31, 2001)

Vasquez appeals the denial of his motion to suppress.

HELD: (1) In reviewing the denial of a motion to suppress, the court will accept fact findings of the district court unless clearly erroneous. The evidence is viewed in the light most favorable to the district court's determination, and the ultimate determination under the Fourth Amendment is a question of law reviewed de novo.

(2) Commercial trucking is an industry closely regulated by both federal and state governments, and therefore the court applies the test in New York v. Berger for determining whether a warrantless inspection of a closely regulated industry violates the Fourth Amendment. First, there must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the warrantless inspections must be necessary to further the regulatory scheme. Finally, the statute's inspection program must provide a constitutionally adequate substitute for a warrant. In this case, the safety inspections of commercial carriers satisfy the first prong. The circuit agreed with other circuits that routine safety inspections are necessary to further the regulatory scheme. To satisfy the adequate substitute for a warrant requirement, a regulation must sufficiently inform the commercial property owner that his property will be subject to periodic inspections undertaken for specific purposes, must notify owners as to who is authorized to conduct an inspection, and must limit the discretion of inspectors in time, place and scope. The circuit found that the regulatory scheme governing commercial carriers satisfies these requirements. Having found that all three prongs of the Berger test are satisfied, the circuit found that the inspector permissibly entered Vasquez' trailer to inspect the blocking and bracing. He was authorized to be in the trailer when he detected the odor of marijuana and observed other irregularities.

(3) Although the automobile exception to the warrant requirement is based in part on the ready mobility of automobiles, the justification to conduct such a warrantless search does not vanish once the car has been immobilized. Nor does it depend upon a reviewing court's assessment of the likelihood in each case that the car would have been driven away or that its contents would have been tampered with during the period required for the police to obtain a warrant. Probable cause to search a vehicle is established if, under the totality of circumstances, there is a fair probability that the car contains contraband or evidence. The scope of a warrantless search of an automobile is defined by the object of the search and the places in which there is probable cause to believe it may be found. Although probable cause may not exist when a car is first stopped, it can arise during the course of the stop. An officer's detection of the smell of drugs is entitled to substantial weight in the probable cause analysis. Probable cause existed in this case to search the secret compartment in the trailer.