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

Guilty Plea;

Ineffective Assistance of Counsel;

Separation of Powers

Reed v. Hannigan, 01-3195 (July 2, 2002)

Reed appeals the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254.

Reed pleaded guilty to one count of indecent liberties with a child. In 1992, the Kansas Supreme Court decided State v. Williams, holding that the state legislature had created the more specific crime of aggravated incest for situations where the victim was related to the perpetrator. On April 15, 1994, the Kansas Supreme Court issued two decisions regarding the effect of Williams on cases where a defendant had been convicted of rape or indecent liberties with a child to whom he or she was related. In Carmichael, the court held that Williams was not jurisdictional and that the proper remedy was to vacate the sentence for rape and resentence for aggravated incest. In contrast, in LaBona, the court held that a defendant who pleaded guilty to the crime of indecent liberties with a child waived the right to challenge the conviction by claiming he could only be charged with aggravated incest. In 1997, the petitioner filed a motion to correct his sentence and the state courts held that he waived any challenge to the sentence by his plea of guilty. In Beem v. McCue, the circuit held that this procedure of resentencing to aggravated incest had created the unconstitutional result of sentencing a defendant for a crime for which he was not charged, tried, and convicted. Rehearing has been granted in Beem. But in the Beem case, the defendant did not plead guilty.

HELD: (1) In this case, Reed has not shown that his petition meets the criteria of the AEDPA in terms of the standard of review. He has not established that the state court application of clearly established federal law was objectively unreasonable. The state court decision that he waived the right to challenge his conviction by pleading guilty is not contrary to clearly established federal law such as Broce and Tollett. A voluntary and intelligent plea of guilty may not be collaterally attacked. At the time Reed was charged, it was legally permissible to charge him with indecent liberties rather than aggravated incest. His attorney was not ineffective for failing to predict a judicial ruling that would not be announced until later. The fact that a petitioner who has pleaded guilty is treated differently from one who has gone to trial does not violate equal protection. The underlying state court decision does not violate the doctrine of separation of powers under Whalen. The doctrine of separation of powers in the federal Constitution is not mandatory on the state.

Child Pornography;

Downward Departure

United States v. Goldberg, 01-5052 (July 9, 2002)

(Robert Nigh, Jr., Tulsa, Oklahoma)

Goldberg was convicted of possession of child pornography in violation of 18 U.S.C. § 2252(a)(2). The district court made an 8-level downward departure at sentencing. The government appealed. The court concluded that the district court failed to apply a reasonable methodology hitched to the guidelines, erroneously justifying the degree of departure by the resulting sentence. Second, the court's determination to impose a non-incarceration sentence was predicated on impermissible factors already accounted for in the guidelines.

HELD: (1) The validity of a departure depends on whether the factual circumstances supporting a departure are permissible departure factors, whether the factors relied upon remove the defendant from the heartland, whether the record sufficiently supports the factual basis underlying the departure, and whether the degree of departure is reasonable. The court uses a unitary abuse of discretion standard. The court will not defer to the district court's determination of an issue of law as to the permissibility of a departure factor, but gives substantial deference to the district court when making the second inquiry, because the heartland determination is primarily a factual one. Review of the underlying factual determinations is limited to clear error, and the district court is entitled to some discretion as to the degree of departure. But the court must specifically articulate reasons for the degree of departure using any reasonable methodology hitched to the guidelines. The district court's reasons were for some downward departure but offered no basis for determining the degree of departure. The degree of departure cannot be justified by the resulting sentence.

(2) The Supreme Court has held that the guidelines bar sentencing courts from relying as a factor for downward departure upon a defendant's unblemished criminal record and low risk of recidivism because those factors are fully taken into account in the guidelines. The guidelines also take into account the factor of taking pictures or alluring children for an increase in offense level, so that the district court could not consider that Goldberg neither took pictures nor lured children.

(3) The circuit concluded the district court would have departed downward even if it had not relied upon an unsupported factor of collateral employment consequences. The factor that loomed largest in the district court's mind was Goldberg's extraordinary post-offense rehabilitation. The government concedes the downward departure was appropriate. The circuit concluded that the district court's reliance upon one improper factor does not require reconsideration of that issue at resentencing.

Search Warrant - Confidential Informant, Franks Hearing;

Firearm (§ 924(c)) - Semi-Automatic Assault Weapon, Castillo, Possession, Use or Carry, Sufficient Evidence;

Apprendi - Mandatory Minimums, Plain Error;

Indictment - Error Not Jurisdictional, Constructive Amendment;

Possession - Constructive, Joint Occupancy

United States v. Avery, 00-3262 (July 9, 2002)

(Timothy J. Henry, FPD, Wichita, Kansas)

Avery was convicted of substantive crack cocaine charges and § 924(c) firearm charges.

HELD: (1) The circuit reviews de novo the ultimate determination of reasonableness under the Fourth Amendment. The basis of a CI's knowledge, as well as his reliability, are important factors in deciding whether information in an affidavit supports the finding of probable cause for search. But the complete failure of an affidavit to discuss reliability does not automatically preclude a finding of probable cause. In determining whether probable cause exists to support a search warrant, the magistrate makes a practical, common sense decision. The court held that, even if the affidavit had discussed the CI's criminal history, the magistrate would have issued the search warrant, and the affidavit provided the magistrate with enough independent corroboration that in all likelihood, the search warrant would still have been issued.

(2) A party's concession of legal error however, cannot, standing alone, justify reversing. Nor can that concession relieve this court of its obligation to evaluate the merits of the legal issue presented.

(3) In Castillo, the Supreme Court held that statutory references to particular firearm types define separate crimes. Therefore, the indictment must identify the firearm type and a jury must find that element proved beyond a reasonable doubt. The pre-1998 version was interpreted by Castillo. In 1998, Congress amended and revised § 924(c)(1). The 1998 amendments separated the substantive crime from the penalty provisions and placed those penalty provisions into different subsections. The post-1998 statute sets a maximum penalty for a § 924(c) violation of life imprisonment, and specifies that a defendant found to possess a particular type of weapon will receive a specific mandatory minimum prison sentence. Most courts reviewing the revised § 924(c)(1)(B) provision have concluded that the characteristics of the particular firearms used, carried or possessed are sentencing factors that trigger certain mandatory minimum sentences rather than elements of a separate and distinct crime, which must be alleged in an indictment and proved beyond a reasonable doubt.

(4) Avery urges that Apprendi applies to mandatory minimum sentences. However, the Supreme Court recently ruled in Harris, that Apprendi's rationale does not apply where a fact increases a defendant's mandatory minimum sentence but does not increase the maximum statutory penalty.

(5) In addition, the indictment specified that Avery possessed a Colt AR-15, and at the time of Avery's arrest and indictment, a semi-automatic assault weapon was expressly defined in the statute as including any firearm known as a Colt AR-15. Therefore, given the indictment and jury instructions, once the jury found Avery guilty of count six, the district court appropriately invoked the § 924(c)'s semi-automatic assault provision. The fact that rendered Avery eligible for the mandatory minimum was pleaded in the indictment and proved to the jury beyond a reasonable doubt.

(6) Under § 924(c), a defendant may be charged with possession, or with use or carry. Avery was indicted and tried under the possession prong. The "in furtherance of" aspect which the circuit has treated as a requirement under the possession charge was omitted from the indictment. Instead the indictment employs the use or carry prong's "during and in relation to" language where the terms "in furtherance of" should have been used. The district court instructed the jury that Avery could be found guilty of possession during and in relation to or in furtherance of the commission of a drug trafficking crime. The district court improperly merged the elements from § 924(c)'s possession and use or carry prongs. In Prentiss II (en banc), this court held that an indictment's failure to allege an element of a crime is not jurisdictional. The Supreme Court recently endorsed this position in Cotton. The court reviews the sufficiency of an indictment de novo. When a defendant first challenges the absence of an element of the offense after a jury verdict, the indictment will be deemed sufficient if it contains words of similar import to the element in question. The "in furtherance of" and "in relation to" terms are not entirely interchangeable but the distinction between the two terms does not justify reversal. Both standards require a nexus between the firearm and the alleged crime.

(7) A constructive amendment of an indictment occurs when the terms of the indictment are in effect altered by the presentation of evidence, and jury instructions so modify essential elements of the offense charged that there is a substantial likelihood the defendant may have been convicted of an offense other than that charged.

(8) The court reviews de novo the claim of insufficient evidence. Possession of contraband may be either actual or constructive. In joint occupancy cases, the government must present some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband. In order to obtain a § 841(a)(1) conviction, the government must prove the defendant possessed the controlled substance, knew he possessed it, and intended to distribute it. A defendant's constructive possession of drugs or contraband cannot be inferred simply from the fact that he jointly occupied an area where the contraband was recovered. But the government presented additional evidence from which the jury could conclude that Avery possessed with intent to distribute the crack found in the car's glove compartment. The vehicle was registered in his name, and he was driving the car immediately before the discovery of the crack cocaine. The government produced Avery's confession in which he stated he'd been selling quantities of cocaine for the past two or three years and sometimes delivered it to customers. The evidence was sufficient.

(9) To obtain a possession conviction under § 924(c), the government must show the defendant committed a crime of violence or a drug trafficking crime, possessed a firearm, and possessed the firearm in furtherance of the underlying crime. The evidence supported the conclusion as to several of those factors. The only question is whether possession was in furtherance of drug trafficking. The government has to prove a nexus between a defendant's possession of firearms and the drug trafficking activity. The government must demonstrate that the possession furthered, promoted, or advanced his illegal drug activity. Simply showing that a defendant was a drug dealer who possessed a gun is insufficient. A firearm, that is kept available for use if needed during a drug transaction, is possessed in furtherance of drug trafficking. Deciding whether a defendant intended to possess a weapon in furtherance of drug trafficking is subject to proof by circumstantial evidence such as the type of drug activity, accessibility of the firearm, type of firearm, legal status of the firearm, whether the firearm is loaded, proximity to drugs, and the time and circumstances. The evidence showed that Avery was more than a drug dealer who just happened to own several firearms.

(10) The Apprendi claim is reviewed under the plain error standard. Count one, charging Avery with possessing 13 grams of cocaine under § 841(b)(1)(B), would have been sufficient to raise the statutory maximum from 20 to 40 years. The court never instructed the jury on quantity. But his sentence was 78 months, falling below the 20 year penalty that applies when no quantity is alleged or submitted to the jury. Some of the circuit's decisions have suggested that the failure to submit the drug quantity question to the jury cannot be considered error under Apprendi in that situation. Other opinions of the circuit have concluded that the failure to submit the drug quantity issue to the jury is error, but because the defendant's actual sentence did not exceed the statutory maximum he could have received had the Apprendi error not occurred, the error did not affect the defendant's substantial rights.

Habeas Corpus (28 U.S.C. § 2254) - In Custody Requirement;

Mootness

Foster v. Booher, 00-6414 (July 10, 2002)

(Gloyd L. McCoy, Oklahoma City, Oklahoma)

HELD: (1) Federal courts may grant habeas relief to prisoners held by state authorities only when the habeas petitioner is held in violation of the Constitution or laws or treaties of the United States. This requirement is jurisdictional. Foster challenged a conviction underlying a sentence for which he is no longer in custody. The traditional view was that a prisoner could attack only the conviction for which he was in custody, and only if success on the habeas claim would lead to immediate release from custody. The Supreme Court abandoned the strict definition of "in custody" in the context of consecutive sentences in Peyton v. Rowe, specifically overruling McNally. The court in Payton held that a prisoner could challenge the conviction underlying a sentence that he had not yet begun to serve, but that had been imposed consecutively to the sentence he was currently serving. Garlotte is Payton's complement or Payton in the reverse. Garlotte holds that, for purposes of habeas jurisdiction, a prisoner who is in custody for one of the series of consecutive sentences is in custody for all those sentences. The district court had concluded it lacked jurisdiction because Garlotte does not apply to consecutive sentences imposed by different courts at different times. This circuit rejected that distinction as running against Supreme Court case law. In Maleng v. Cook, the Court had allowed a prisoner serving a federal sentence to challenge the validity of a state sentence that would commence at the end of the federal sentence. Similarly, in Braden, the Court held that the in-custody requirement did not prevent a prisoner, currently serving a sentence in Alabama, from challenging a future detainer by Kentucky on different charges.

(2) A mootness claim is different from whether or not there is jurisdiction. If Foster's petition is successful, he might be released from prison at an earlier date, which would affect the length of the sentence he is currently serving. The circuit also rejected the state's argument that policy considerations make the distinction one that the circuit should uphold.

Motion to Suppress - Review Standard;

Search - Consent;

Safety Valve - Possession of Firearm by Co-Defendant;

Appellate Review - One Panel Cannot Overrule Another

United States v. Pena-Sarabia, 01-3228 (July 19, 2002)

Pena entered a conditional plea of guilty to possession with intent to distribute cocaine. She was sentenced to 60 months under the mandatory minimum of § 841(b)(1)(B). The district court determined that Pena was ineligible for the safety valve provision because her husband's possession of a handgun was foreseeable.

HELD: (1) When reviewing a district court's grant or denial of a motion to suppress, the circuit accepts the court's findings of fact unless clearly erroneous, and considers the evidence in the light most favorable to the government. One of the exceptions to the requirement of a warrant and probable cause is a search conducted pursuant to consent. The government bears the burden of proving a valid consent to a warrantless search. The government must present testimony that consent was unequivocal, specific, and freely and intelligently given. Second, the government must show the police did not coerce the defendant. Proof of knowledge of the right to refuse consent is not a necessary prerequisite. Under the totality of the circumstances, the circuit held the district court did not err in finding that the government had proved consent.

(2) Pena argues she was eligible for sentencing under the safety valve provision even though her co-defendant husband possessed a firearm. The government argues that she should be held accountable for the foreseeable acts of her husband undertaken in their joint criminal activity. The scope and meaning of 18 U.S.C. § 3553(f) is a question of law reviewed de novo. Where a violation of § 841 involves more than 500 grams of cocaine, the defendant is sentenced to not less than five years. Congress has provided a safety valve to the minimum sentence for drug offenders meeting certain criteria. The Sentencing Commission adopted the criteria in 18 U.S.C. § 3553(f) verbatim into §5C1.2. One requirement is that the defendant not possess a firearm or other dangerous weapon or induce another participant to do so in connection with the offense. In Hallum, a Tenth Circuit panel held that a defendant's possession of a firearm for purposes of §5C1.2 could be established by another person's reasonably foreseeable possession of a firearm in furtherance of a

joint criminal activity. Upon further review, the circuit concluded the holding is contrary to controlling law and has been rejected by every other circuit to pass on the issue. The court recognized it was bound by the precedent of prior panels absent en banc reconsideration. In accordance with the court's practice, this panel circulated the opinion to the en banc court, and the court has unanimously voted to overrule Halum. Therefore, the court held that a joint criminal actor's firearm possession is not attributable to a defendant, for purposes of applying the mandatory minimum safety valve provision, unless the defendant induced such possession in accordance with §5C1.2(2), comm. n. 4.

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

Guilty Plea;

Ineffective Assistance of Counsel

Johnson v. Atherton, 01-1007 (July 17, 2002)

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

Johnson appeals the district court's denial of his petition for writ of habeas corpus. The AEDPA standard of review applies. The Supreme Court has determined that a guilty plea, intelligently and voluntarily made, bars the later assertion of Constitutional challenges to the pretrial proceedings. This bar has been applied to claims of ineffective assistance of counsel not implicating the voluntariness of the plea. The circuit did not decide whether the Leskowitz bar applies to claims involving ineffective assistance of counsel preceding a guilty plea. The court only needed to determine whether the state court's adjudication of the claim was objectively unreasonable. The Colorado Court of Appeals decision, that relief was foreclosed because Johnson intelligently and voluntarily entered his plea, was not contrary to clearly established federal law, nor did it involve an unreasonable application of such law.

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

Second or Successive Petition - Permission to File; Stay of Execution;

Apprendi - Ring v. Arizona, Retroactivity

Cannon v. Mullin, 02-6217 (July 19, 2002)

This is before the court on Cannon's emergency application for stay of execution and motion for order pursuant to § 2244(b)(3)(A) for permission to file a second petition for habeas corpus relief. Because Cannon has not made a prima facie showing that his application to file a second § 2254 habeas petition satisfies the

requirements of the statute, the court denied the request to file a second petition and his request for stay of execution.

HELD: (1) Cannon's claim was based on Apprendi and the recent Supreme Court decision in Ring that extended the Apprendi rule to the death penalty context. In particular, the Court noted that, under Arizona law, the maximum punishment for first degree murder was life imprisonment unless one of the statutorily enumerated aggravating factors was found to exist beyond a reasonable doubt. The Court further noted that, under Arizona law, it is the trial court that is empowered to determined whether the requisite aggravating circumstance is present. The case presented the question of whether the aggravating factor may be found by the judge under Arizona law, or whether the Sixth Amendment's jury trial guarantee, made applicable to the states by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury. The Court in Ring concluded that the Sixth Amendment mandated that the existence of an aggravating factor necessary for imposition of the death penalty must be found by the jury. Cannon claims that Oklahoma's capital sentencing scheme suffers from the same infirmity.

(2) The ability of state prisoners to bring a second or successive § 2254 habeas petition is strictly limited. Cannon can only gain permission if Ring set forth a new rule of constitutional law that was previously unavailable, and the Supreme Court has made that new rule retroactive to cases on collateral review. Cannon argues that Ring announced a new substantive rule so that Teague does not apply, or that the Supreme Court made Ring retroactive through the combination of Teague, Ring, and cases preceding Ring in the Apprendi line. The court rejected the latter argument in light of the Supreme Court decision in Tyler. A new rule becomes retroactive for purposes of a successive petition, not by decisions of the lower court or combined actions of the Supreme Court, but simply by the action of the Supreme Court.

(3) As to whether Ring announced a new rule of substantive law to which Teague does not apply, due to the Supreme Court's decision in Bousley, the court held that Ring is simply an extension of Apprendi to the death penalty context, and that the Tenth Circuit's recent conclusion in Mora that Apprendi announced a rule of criminal procedure forecloses Cannon's argument that Ring announced a substantive rule.

Motion to Vacate (28 U.S.C. § 2254) - Standard of Review;

Retroactivity - Castillo as Substantive Law;

Procedural Bar - Cause and Prejudice, Sua Sponte;

Firearms (§ 924(c)) - Elements or Sentencing Factors, Type of Weapon

United States v. Wiseman, 01-2122 (July 18, 2002)

(Jacquelyn Robins, Albuquerque, New Mexico)

Wiseman was convicted of several counts, including two counts of using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1). The jury was not instructed to find the type of firearm used. Nonetheless, Wiseman was sentenced to a 10 year term of imprisonment for the first conviction, based on the trial court's finding that the firearm was a semi-automatic assault weapon. Wiseman was sentenced to a 20 year term for the other conviction because it was second or subsequent. Wiseman filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in which he claimed the convictions were contrary to Castillo and Apprendi. The district court denied relief but granted a certificate of appealability.

HELD: (1) The district court's legal rulings on a § 2255 motion are reviewed de novo and its findings of fact are reviewed for clear error. The district court had held that the Supreme Court announced new constitutional rules of criminal procedure in Castillo and Apprendi, but held that the rules did not apply retroactively under Teague. The argument that these cases fit within the watershed exception to Teague is foreclosed by circuit precedent in the Mora decision, holding Apprendi is not a watershed.

(2) Wiseman did not object to the jury instruction and did not raise the issue on direct appeal. He is barred from raising this issue on collateral review unless he can show both cause for the default and actual prejudice. Cause can be shown by demonstrating that the claim is so novel that its legal basis was not reasonably available to counsel. Cause can also be established by showing that counsel rendered constitutionally ineffective assistance. Alternatively, a § 2255 movant can overcome procedural bar if he demonstrates the constitutional error has probably resulted in a conviction of one who is actually innocent.

(3) The government did not raise the procedural bar defense. The court may raise procedural bar sua sponte. Whether the court does so depends on a variety of factors. Consideration of procedural bar would not be an efficient use of judicial resources in this case. Wiseman would have to be given the opportunity to brief the procedural bar question, and the merits have already been fully briefed. In addition, the government's complete failure to assert the procedural bar defense weighs heavily against its sua sponte enforcement.

(4) In Castillo, the Supreme Court held that references to the particular firearms in § 924(c) define separate, aggravated crimes and were not merely sentencing factors. It is undisputed that the trial court, rather than the jury, found that Wiseman used a semi-automatic assault weapon when he committed the Hobbs Act robberies. This court has made it clear that the non-retroactivity rule in Teague applies only to procedural rules, and does not apply when the court decides the meaning of a criminal statute enacted by Congress. The court's holding in Castillo was based solely on its interpretation of § 924(c), a federal statute in effect at the time Wiseman committed the firearms offenses. Castillo did not announce a new constitutional rule of criminal procedure. Thus, the finality concerns that support Teague non-retroactivity are not present. Teague does not bar Castillo's retroactive application on collateral review.

(5) Wiseman's convictions should not be vacated where, on direct appeal, this court rejected his argument that he did not use or carry the firearm. At the time Wiseman committed the two firearms offenses, § 924(c) prescribed a five year sentence for a first conviction. Therefore, the sentence Wiseman received for his first conviction must be vacated because it exceeds five years, and he must be resentenced to the term of imprisonment imposed for the crime of using a non-descript firearm. Wiseman is not entitled to relief from the 20 year consecutive sentence. To support that sentence, the jury was only required to find that Wiseman used a non-descript firearm during the commission of a crime of violence. That sentence was not contingent upon a jury finding that the firearm was a semi-automatic assault weapon. Child Abuse Crimes;

Hearsay (Rule 801(d)(2)(B)) - Rule 807 Exception;

Objections - Preservation, Review Standard, Renewal at Trial;

Trial Court Conduct;

Prosecutorial Misconduct - Expression of Personal Beliefs

United States v. Harrison, 01-2255 (July , 2002)

(Thomas B. Jameson, FPD, Albuquerque, New Mexico)

Harrison was convicted of aggravated sexual abuse of a child, under 18 U.S.C. § 2241(c) and § 2246(2)(A), and one count of abusive sexual contact with a child, in violation of §§ 2244(a)(1), (c), and 2246(3). Defendant appeals, claiming that the district court allowed inadmissible hearsay into evidence, and that prosecutorial and judicial misconduct during the trial require reversal.

HELD: (1) Under Rule 801(d)(2)(B), a statement is not hearsay if the statement is an admission by a party opponent, that is, a statement offered against a party and is the party's own statement or a statement of which the party has manifested an adoption or belief in its truth. Whether a defendant manifested an adoption or belief in the truth of a statement is a preliminary question of fact to be decided by the court under a preponderance of the evidence standard. Because the district court made the necessary factual finding for admissibility of the child's statement to Officer Yazzie, there is ample evidentiary support for the findings and it is not unfair to the defendant to rely on those findings. Therefore, the court affirmed the admission of the child's statement to Officer Yazzie under Rule 801(d)(2)(B).

(2) The court then turned to the admissibility of the child's statement to Agent Amman. The court has to decide whether review is for plain error or for abuse of discretion, and then had to discuss the scope of the record in determining whether there was any abuse of discretion. The government urged that, to preserve an objection made in response to a motion in liminie to admit evidence, the party must renew the objection when the evidence is introduced at trial. This circuit has recognized an exception to the general rule when the issue 1) is fairly presented to the district court, 2) is the type of issue that can be finally decided pretrial, and 3) is ruled upon without equivocation by the trial judge. Therefore, the court decided to review this under abuse of discretion. When the party opposing the motion does not renew the objection at trial, the ruling should be affirmed if the matters presented at the hearing on the motions support the ruling. On appeal, the opponent cannot rely on new evidence at trial or failure of the evidence at trial to conform to the proffer at the hearing on the motion in liminie. In the event of such new evidence or a failure to produce evidence, the opponent has the duty to bring the matter to the attention to the district court by renewing the objection to admission of evidence or moving to strike. Therefore, the court would not consider evidence at trial that may suggest that the statement to the agent was untrustworthy, and the court can consider the law enforcement reports presented to the district court at the time of its initial ruling even if some of the observations in the reports were not repeated at trial. On the other hand, to affirm the district court's ruling, the court may decide to consider all the evidence at trial. The cause of justice is unlikely to be furthered by reversing a judgment because a ruling was not supported by sufficient evidence when made, but was so supported by the time of the verdict. This court has previously held it would consider evidence at trial in support of the district court's ruling on a motion to suppress, regardless of whether that motion was renewed at trial.

(3) Rule 807 provides that a statement, not specifically covered by Rules 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the court makes certain determinations and if there is notice in advance of trial. Rule 807 should be used only in extraordinary circumstances. However, courts regularly employ the residual exception in child abuse litigation. The principal issue is whether the statement had circumstantial guarantees of trustworthiness. The court relied on the consistency of the child's accounts of the assaults. The specificity and particularity of the child's account are also relevant. Indicia of unreliability include the extended period of time between the alleged defendant's statements and a child's limited capacity to remember, and a potential motive to lie. The rules have a strong preference for in-person testimony, and prior testimony is admissible only if there is a special need for it. The district court could properly rule that the child's statement was the most probative available evidence with respect to details not disclosed in other statements. The district court did not abuse its discretion.

(4) Actions by the judge were no more than efforts to keep an unruly defense counsel within bounds.

(5) A prosecutor should not express a personal belief in the defendant's guilt. The prosecutor did not violate this command during cross-examination of defense witnesses. The circuit did express a concern about the prosecutor's closing argument, and cautioned prosecutors to be meticulous in making clear to the jury they are only commenting on evidence at trial. Because the defendant did not object at trial, review is for plain error which these comments did not reach.

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

Harmless Error

Saiz v. Burnett, 01-1299 (July 23, 2002)

(Walter L. Gerash, Denver, Colorado)

The state appealed the district court's order granting habeas relief pursuant to 28 U.S.C. § 2254.

HELD: (1) The AEDPA and its standard of review applies.

(2) The Colorado appellate court concluded that the trial court error in excluding proffered testimony was harmless. The court reviewed the trial court's error under the correct standard of Chapman, harmless beyond a reasonable doubt. The question on federal habeas review is whether the state court's application of Chapman was objectively unreasonable. The district court erred by failing to analyze the state court's decision for objective reasonableness under the AEDPA. The issue on habeas review is, not whether the state court applied a legal standard incorrectly, but whether the state court's application was objectively unreasonable. Upon remand, if the district court concludes that the state court's application of Chapman was objectively unreasonable, the court should engage in an independent harmless error analysis, applying the standard articulated in Brecht.

Habeas Corpus (28 U.S.C. § 2254);

Jury - Extraneous Evidence During Deliberations, Review Standard;

Evidentiary Hearing

Vigil v. Zavaras, 01-1023 (July 23, 2002)

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

Vigil is serving a 24 year sentence in Colorado state prison for committing sexual assault in the first degree, and committing a violent crime with a deadly weapon while committing the first degree sexual assault. Vigil filed a habeas action claiming his Sixth Amendment rights were violated when the jury convicted, considering evidence beyond that produced at trial. The district court denied relief, but issued a certificate of appealability. Vigil relies on information contained in the affidavit of Gonzales, a juror in his trial, alleging a number of improprieties that occurred during jury deliberations, including use of a bible and dictionary by jurors. In addition, the jury considered evidence on the timing issue that was not presented in the course of trial. One juror drew a map or diagram, and used it to convince the jurors that it would only have taken a couple of minutes for Vigil to have traveled from one house to another, which information was important in considering his alibi defense and opportunity to commit the crime.

HELD: (1) A jury's verdict must be based upon evidence developed at trial. In habeas, a federal court may grant relief only when the alleged conduct had a substantial and injurious effect or influence in determining the jury's verdict. Whether juror misconduct prejudiced a defendant is a mixed question of law and fact. The court applies the presumption of correctness to fact findings. In determining whether information substantially influenced a jury's verdict, the court may consider the degree to which the jury discussed and considered extrinsic information, extent to which the jury had difficulty reaching a verdict prior to receiving the improper evidence, and degree to which the information related to a material fact in the case. Legitimate evidence supporting the conviction appeared strong. In addition, extrinsic evidence described in the Gonzales affidavit may have duplicated the timing evidence. A common sense reading of the affidavit suggests that all the unidentified juror essentially told the jury was that Vigil could have gotten from one house to another in a short period of time. This argument was made by the prosecution throughout the trial and was reinforced by the suggestion in closing argument that people drive more quickly at 4:00 a.m. There are other difficulties with finding prejudice based strictly on the information contained in the affidavit.

(2) The decision to hold an evidentiary hearing is vested in the broad discretion of the courts. Pre-AEDPA, to obtain a hearing, a petitioner had to show cause and prejudice or actual innocence. At the trial stage, Vigil never requested that the Colorado court hold an evidentiary hearing on the misconduct claim, and Vigil failed to take the necessary steps even after the trial court granted him access to jurors on the case.

Habeas Corpus (28 U.S.C. § 2254);

Certificate of Appealability;

Ineffective Assistance of Counsel - Investigation, Predict Law;

Appellate Review;

State Law Errors;

Exculpatory Evidence - Potentially Exculpatory;

Waiver

Bullock v. Carver, 00-4023 (July 23, 2002)

Bullock was convicted of three counts of aggravated sexual abuse of a child and three counts of sodomy upon a child. He was sentenced to a minimum mandatory 15 years to life on each sodomy count, and 9 years to life on each sexual abuse conviction, with sentences to run concurrently. His conviction was upheld by the Utah Supreme Court and the United States Supreme Court denied his petition for certiorari. Two years later he filed a § 2254 motion pre-AEDPA. The magistrate held a 4-day evidentiary hearing on ineffective assistance of counsel, and ultimately recommended rejecting all claims for relief. The district court denied relief. Bullock appealed the denial of relief after the AEDPA became effective, so the circuit could only address issues for which a certificate of appealability was granted. Even though the district court declined to grant a COA, the circuit may grant a COA if Bullock demonstrates that reasonable jurors would find a district court's assessment of constitutional claims debatable or wrong. On each claim, the circuit found that Bullock had made a substantial showing of a denial of a constitutional right. Under pre-AEDPA law, the court presumed state court fact determinations to be correct, and where the federal court makes factual findings after an evidentiary hearing, the court reviews those for clear error. In either situation, the court reviews conclusions of law de novo. The court may grant relief to a state prisoner only if he has been deprived of fundamental rights guaranteed by the Constitution.

(2) The ineffective assistance of counsel standard is set forth in Strickland, and is a two-part standard of deficient performance and prejudice. The court will presume that trial counsel's actions were objectively reasonable. The court also assumes that strategic choices made after thorough investigation of the law and facts are virtually unchallengeable. The relevant question however is whether counsel's performance failed below an objective standard of reasonableness. Unawareness of relevant law at the time a decision is made may not in itself render performance constitutionally deficient. However, an attorney's ignorance will affect a court's evaluation of an ineffective assistance of counsel claim. Strategic choices made after less than complete investigation are reasonable to the extent that professional judgment supports the limitation on investigation. Counsel has a duty to make a reasonable investigation or make a reasonable decision that makes a particular investigation unnecessary. An attorney's failure to present a defense theory or mitigation cannot be considered strategic when the decision was influenced by inadequate preparation and investigation. Whether counsel's actions can be considered strategic plays an important role in the court's analysis of Strickland's deficient performance prong.

(3) The attorneys premised much of their trial strategy on the belief that the children's direct testimony through video-tape or live could not be excluded, and as presented, would be credible. The circuit found without merit the argument that such evidence could be excluded under Utah rules of evidence. This court has rejected ineffectiveness claims where a defendant faults counsel for failing to predict future law.

(4) Utah law permits admission of a child victim's out of court statement regarding sexual abuse in certain circumstances. The statute requires that, before admitting such testimony, the judge shall determine whether the interests of justice will best be served by admission of that statement. The judge must consider the age and maturity of the child, the nature and duration of the abuse, relationship of the child to the offender, and the reliability of the assertion and the child. It appears that one of the attorneys did not fully grasp the reliability component. However, the circuit concluded that a fully informed attorney could have concluded that admitting the hearsay statement was to Bullock's advantage.

(5) Normally the court will not consider arguments on appeal not directed to filings before the district court.

(6) A habeas petitioner is only entitled to relief for violations of federal rights and not errors of state law.

(7) The due process clause requires police departments to preserve clearly exculpatory evidence in their possession that might not be available to the defendant through other means. But where police only failed to preserve potentially useful evidence that might have been exculpatory, a defendant must prove bad faith.

(8) To the extent Bullock's confrontation clause argument relies on state law, it must fail. A defendant waives the protections guaranteed by the confrontation clause when counsel stipulates to admission of hearsay evidence or fails to object.

(9) The court noted the disturbing interview techniques of children by this particular doctor.

Expect Testimony;

Instructions;

Sufficient Evidence;

Downward Departure;

Double Jeopardy - Acquitted Conduct;

Relevant Conduct;

Sentencing - Preponderance of Evidence

United States v. Mendez-Zamora and Gaona-Sepulveda, 01-3211 and 01-3215

(July 24, 2002)

The two appellants were jointly tried and convicted of conspiracy to possess with intent to distribute, and to possess with intent to distribute, at least one kilogram of methamphetamine. Zamora was convicted of three other counts. He was sentenced to life imprisonment. The court granted a downward departure to Sepulveda.

HELD: (1) Rule 704 does not preclude expert testimony regarding the roles played by participants in a conspiracy.

(2) The instruction did not reduce the government's burden to prove all elements of the offense beyond a reasonable doubt. Nor did it compel the defendant to incriminate himself.

(3) Sufficiency of the evidence is reviewed de novo in the light most favorable to the government. The court will not reweigh the credibility of witnesses.

(4) The court has jurisdiction to review a sentencing court's refusal to depart only where the district court states it does not have authority to depart. The district court denied a departure for Zamora after considering his particular circumstances. There is no appellate jurisdiction.

(5) The double jeopardy clause is not violated when a sentencing court considers conduct for which the defendant was acquitted.

(6) The guidelines require that all relevant conduct be considered at sentencing. Relevant conduct includes reasonably foreseeable acts of co-conspirators in furtherance of a conspiracy.

(7) The preponderance of evidence standard applies at sentencing.

Plain Error;

Apprendi - Indictment Defect, Plain Error, Error in Instructions, Multiple Counts;

Indictment - Failure to Allege Element;

Motion to Suppress - Review Standard;

Witnesses - Benefit From Testimony;

Motion For Judgment of Acquittal;

Firearms (§ 924(c)) - Possession, Use, Carry, Jury Finding;

Admission of Evidence;

Substitution of Counsel - Inquiry, Prejudice

United States v. Lott, 00-6141, United States v. Lott, 00-6200 (July 30, 2002)

Gary and Johnny Lott were convicted of various counts of conspiracy to manufacture and distribute methamphetamine.

HELD: (1) After their sentencing, the Apprendi decision was announced. In Cotton, the Supreme Court held that the omission from the indictment is not jurisdictional, and analyzed the defect in the indictment under the plain error test. The unpreserved error as to the instructions is also reviewed under the plain error standard. There was error due to sentences imposed in excess of 20 years that is plain. But neither defendant can show that the Apprendi error affected their substantial rights because their total length of imprisonment would not have been shorter even if they were properly sentenced under § 841(b)(1)(C), due to the mandatory stacking requirement of §5G1.2(d) where there are multiple counts.

(2) In Gary Lott's case, the question is whether the district court's mandatory imposition of consecutive sentences on all counts would have equaled the life sentence he currently faces under the erroneous sentencing under § 841(b)(1)(A). The district court would have been required to sentence him to a total consecutive sentence of 125 years. This is equivalent to a life sentence. Similarly, the Apprendi error did not effect Johnny Lott's substantial rights.

(3) In reviewing a motion to suppress, the court accepts the district court's fact findings unless clearly erroneous. Gary Lott had moved to suppress testimony of certain government witnesses who received benefit from their testimony. Lott urges the circuit should overrule its prior holding in United States v. Singleton. The circuit did not.

(4) The court reviews the denial of a motion for judgment of acquittal de novo. Section 924(c) deals with use or carry of a firearm or possession of a firearm. Count 12 charged carrying and possession. The court had to determine whether the jury could have found Gary Lott guilty either of carrying or of possessing the weapon. The evidence was sufficient to prove possession, so the court did not consider the carrying charge. Possession can be constructive or actual. The possession was also in furtherance of Gary Lott's drug trafficking activities.

(5) The court reviewed for plain error Johnny Lott's objection to admission of exhibits on the basis of hearsay, when he did not object at trial. The admission of the exhibits did not effect his substantial rights.

(6) The court reviews refusal to substitute counsel for abuse of discretion. To warrant substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication, or irreconcilable conflict. The court rejected Lott's claim that the district court's failure to make a formal inquiry required a remand. The failure to conduct such inquiry is not per se reversible error. To demonstrate prejudice, the defendant must show that the performance of his attorney was not within the range of competence and that, but for counsel's deficiencies, there is a reasonable probability the result of the proceeding would have been different. This is the Strickland test for ineffective assistance.