Bribery (18 U.S.C. § 201(c)) - Government Promise in Exchange For Testimony

United States v. Singleton, 97-3178 (July 1, 1998)

In this case the panel held that government promises in exchange for testimony violate the bribery statute, 18 U.S.C. § 201(c). The court applied established rules of statutory construction to reach this decision, and dismissed government arguments. The opinion has been vacated, and briefing has been required on these questions, as well as whether a decision should be applied retroactively. The case is set for oral argument on the November calendar.

Jury - Jury Selection and Service Act (JSSA), Systematic Exclusion, Fair Cross-Section, Sworn Statement, Absolute and Comparative Disparity, Excusal of Juror After Empaneled; Double Jeopardy - Continuing Jeopardy, Inception and Terminating Event, Not Multiple Punishment (§ 1951 and 924(c)); Instructions - Element of Hobbs Act (Effect on Interstate Commerce), Question For Jury; Armed Career Criminal Act - Review Standard, Qualification; Hobbs Act (18 U.S.C. § 1951) - Effect on Interstate Commerce, Instructions

United States v. Shinault, 97-3061 (July 8, 1998)

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

Shinault was convicted of Hobbs Act violations and using or carrying a weapon during a crime of violence under 18 U.S.C. § 924(c).

HELD: (1) Shinault challenged the jury selection system in the district of Kansas on the basis that it systematically excludes Asians, Blacks and Hispanics from jury service in violation of the Jury Selection and Service Act of 1968. The court reviews factual determinations for clear error, and de novo the legal determination of whether a prima facie violation of the fair cross section requirement has occurred. The Act requires that a defendant's motion contain a sworn statement of the facts. The defendant did not file this statement. This requirement is strictly construed. Nonetheless, the merits of the case present an unsurmountable barrier for the appellant. The defendant need not belong to any of the groups mentioned in order to have standing. Asians, Blacks and Hispanics are all distinctive groups. The defendant must show representation of these groups on jury venires is not fair and reasonable in relation to their numbers in the community. There are shortcomings in the defendant's statistical method, but the court nonetheless found the method of comparison appropriate. Courts generally rely on two methods of comparison, both absolute and comparative disparity. In this circuit, absolute disparity is the starting place for all other modes of comparison. The greatest absolute disparity is less than three percent, which is far less than the percentages the Supreme Court has relied on in finding Sixth Amendment violations. This circuit has found that absolute disparities of 4.29 percent and 7 percent fail to establish a prima facie violation. The comparative disparities are larger. However the smaller the group, the more the comparative disparity figure distorts the proportional representation. Shinault has failed to meet the three-prong test of Duren that requires that the group allegedly excluded is distinctive, that representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and this under representation is due to systematic exclusion in the jury selection process.

(2) The district court empaneled and swore a jury. Then after being advised one of the jurors had child care responsibilities, the court excused the juror and replaced her with another. The Double Jeopardy Clause does not apply to situations in which the defendant has been placed in jeopardy once. The Ball decision formulated a concept of continuing jeopardy that has application when criminal proceedings against an accused have not run their full course. Also at stake however is the defendant's right to have his trial completed by a particular tribunal. As soon as a jury is sworn, the defendant acquires a constitutional interest in having that jury see his case through to a conclusion. Once a particular jury is sworn the prosecutor may not try the defendant before another jury without demonstrating a manifest necessity for the new proceeding. The cases protecting this right focus on the inception of the proceedings when the jury was sworn, while the Richardson case asks whether there has been an end to those proceedings. Thus, on the one hand, because jeopardy attached after the swearing of the first jury and that original tribunal did not ultimately decide the case, there is precedent to compel the government to prove a manifest necessity for trying the case before a new jury. On the other hand, under Richardson, a terminating event must occur before the Double Jeopardy Clause even comes into play. The court phrased the question as "when does a defendant's continuing jeopardy terminate?" The court looked to the interest served by the Double Jeopardy Clause to determine whether the original proceeding ever actually terminated. The procedure in this case did not threaten the defendant with any of the harms that the Double Jeopardy Clause was meant to prevent.

(3) Shinault argued the jury instructions removed an element of the Hobbs Act violation from the jury's consideration, in violation of Gaudin, where the instruction dictated to the jury how to apply to the facts regarding the jurisdictional requirement of an effect on interstate commerce. But in Gaudin, the court did not submit the materiality element to the jury. Here the element was submitted to the jury and the instruction did not effectively remove the issue from the jury's consideration. The court merely concluded its definition of interstate commerce by giving an example.

(4) Shinault challenges his sentence enhancement under the Armed Career Criminal Act. Fact findings are upheld unless clearly erroneous. The ACCA applies where the defendant is convicted of violating 18 U.S.C. § 922(g) and has three prior convictions for violent felonies or serious drug offenses. The court could not find the district court's findings clearly erroneous. As to a related matter, failure to object to a fact in the presentence report acts as an admission of fact.

(5) Because the Hobbs Act regulates activities that in the aggregate have a substantial effect on interstate commerce, the act is constitutional. This argument has been rejected before in Bolton.

(6) For each of the defendant's acts of robbery, the jury convicted him of both the Hobbs Act and § 924(c). These convictions do not violate the double jeopardy protection against multiple punishment for the same conduct. Congress may impose multiple punishment for the same conduct without violating the Double Jeopardy Clause, if it clearly expresses its intent to do so.

Motion to Suppress - Review Standard; Police Encounters - Three Kinds, Consensual

United States v. Torrez-Guevara, 97-4115 (July 8, 1998)

Torrez-Guevara entered a conditional guilty plea to possession of cocaine with intent to distribute, and preserved her right to raise a suppression issue on appeal.

HELD: (1) The court reviews the district court's denial of a motion to suppress in the light most favorable to the government, and upholds fact findings unless clearly erroneous. The court reviews de novo the conclusion of law of whether a seizure occurred. There are three categories of police encounters; consensual encounters, investigative detentions supported by reasonable suspicion, and arrest which requires probable cause. An encounter is consensual if the defendant is free to leave at any time. The court reviews all the circumstances surrounding an encounter. The encounter here occurred on a public curbside and the officers never surrounded or restrained Torrez-Guevara. They were not wearing uniforms and did not brandish weapons. They promptly returned her airline ticket and identification to her. They twice told her she was not under arrest and was free to leave. The fact that one officer asked her twice to consent to a search, and the other asked her twice whether she carried drugs, did not escalate the encounter into a seizure. Her subjective belief is not determinative.

(2) Miranda warnings are required only when a suspect is in custody. Her encounter with officers was consensual so she was not in custody.

Special Parole Term - Revocation and Re-Release

Whitney v. Booker, 97-1243 (July 10, 1998)

(Vicki Mandell-King, FPD, Denver, Colorado)

Whitney was sentenced to a term of imprisonment followed by a special parole term. After completing his term of imprisonment and regular parole, he began his special parole term. He violated that special parole term and received a new term of imprisonment. He was later re-released on parole. His re-release was designated as a special parole term rather than regular parole.

Five circuits have held the Commission lacks authority to reimpose a term of special parole after revocation of an original term of special parole. The Tenth Circuit joined the other circuits in holding the Commission lacked that authority. 21 U.S.C. § 841(c) still applies to convictions for offenses committed before November 1, 1987. It provides for revocation of special parole and is similar to 18 U.S.C. § 3583(e), dealing with supervised release revocation. Because the circuit found no ambiguity in the statute, it gave effect to the clear meaning of the statute and did not defer to the Commission's interpretation.

Habeas Corpus (28 U.S.C. § 2254); AEDPA - Oklahoma Not Qualify; Ineffective Assistance of Counsel - Review Standard, Deficient Performance and Prejudice, Waiver of Closing Argument, Appellate Counsel; Procedural Bar - Failure to Raise Claim in First Post Conviction Proceeding, Cause and Prejudice, Miscarriage of Justice; Evidentiary Hearing; Witnesses - Funds to Hire Expert, Harmless Error, Ake Claim, Other Experts; Prosecutorial Misconduct; Cumulative Error; Aggravating Circumstances - Reweigh if One or More Invalid; Parole Ineligibility (Simmons Claim) - Teague Barred; Amend Petition - Discretion, Untimely

Moore v. Reynolds, 97-6065 (July 13, 1998)

(David A. Ruhnke, Montclair, New Jersey and Scott Braden, FPD, Oklahoma City, Oklahoma)

Moore, an Oklahoma state prisoner sentenced to death, appeals the denial of his petition for writ of habeas corpus.

HELD: (1) Because the State of Oklahoma has not satisfied the requirements of the AEDPA § 2261(b) and (c), the expedited habeas procedures in Chapter 154 are not applicable. Under pre-AEDPA standards, a petitioner had to obtain a certificate of probable cause from the district judge. The district court denied Moore a COA. The court granted Moore a CPC and reviewed his issues on the merits.

(2) Claims of ineffective assistance present mixed questions of law and fact reviewed de novo. Under Strickland, there is a two-prong test of deficient performance and prejudice. Claims regarding pretrial preparation investigation were not raised and the state court held they were barred. A state prisoner can only overcome procedural bar if he can show cause and prejudice or a fundamental miscarriage of justice. The question presented concerns the legal effect of a state prisoner presenting an ineffective assistance claim for the first time in a second or successive state post-conviction application. Moore could have raised those arguments in his first post-conviction application. Moore can not demonstrate cause and prejudice. Ineffective assistance of counsel in post-conviction proceedings does not constitute cause under federal law. Fundamental miscarriage of justice must be shown by factual innocence. Even if Moore could make this showing to provide a gateway to review the claims, the court could find no merit in the claims.

(3) Counsel waived penalty phase closing argument. The court allowed the prosecution to make a second closing argument, and then refused to allow counsel to revoke his waiver and give a closing argument, after the prosecution's second one. The waiver was the product of a strategic decision on the part of counsel. Even if the performance was deficient, Moore can not show he was prejudiced.

(4) As to ineffective assistance of appellate counsel, the failure to raise denial of motion for expert assistance, lack of corroboration of testimony, and other issues do not constitute ineffective assistance where the issues are without merit.

(5) There was no need for an evidentiary hearing where the claims were properly rejected on procedural grounds or lack of prejudice.

(6) The trial court refused to grant funds to hire a mental expert. In Ake, when a defendant has made a preliminary showing that his sanity is likely to be significant, the Constitution requires that a state provide access to psychiatric assistance. The question presented is whether the habeas petitioner could have made a threshold showing under Ake that his sanity at the time of the offense was to be a significant factor. The circuit found Moore had established this, but held that the error was harmless.

(7) The Fifth Amendment's guarantee of fundamental fairness entitles indigent defendants to a fair opportunity to present their defense at trial. The court considers the effect on the petitioner's privacy interest and the accuracy of the trial if the requested service is not provided, the burden on the government's interest if the service is provided, and the probable value of the additional service and risk of error in the proceeding if such assistance is not offered. Moore complains about the denial of appointment of ballistics expert and other experts. Moore has failed to make a showing as to probable value.

(8) The court reviews allegations of prosecutorial misconduct de novo. Such misconduct does not warrant habeas relief unless the conduct complained of so infected the trial with unfairness as to make the resulting conviction a denial of due process.

(9) Cumulative error analysis applies where there are two or more actual errors, and does not apply to the cumulative effect of non-errors.

(10) In Clemons, the Supreme Court held that Constitutional rights are not infringed when an appellate court invalidates one or more aggravating circumstances but affirms based on reweighing or harmless error analysis. The court reviewed the merits of the Court of Criminal Appeals decision and agreed that the three remaining aggravating circumstances outweighed mitigating evidence and warranted imposition of the death penalty.

(11) In Simmons, the Supreme Court held that a capital defendant must be permitted to inform his sentencing jury that he is parole ineligible, if the prosecution argues he presents a future danger. Simmons is a new rule under the Teague doctrine that cannot be used to disturb a habeas petitioner's death sentence that became final prior to Simmons.

(12) A district court's denial of a motion to amend a habeas petition is reviewed for abuse of discretion. Moore's request, filed two years after the initial petition was filed, was untimely. And on the merits, the claim he sought to add of a challenge to the continuing threat aggregator has been rejected by this circuit.

Civil Rights (42 U.S.C. § 1983) - Review Pro Se Complaint; Retaliation; Visitation; Religion - Diet; Private RICO Claim; Access to Courts

Peterson v. Shanks, 96-2190 (July 15, 1998)

This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by a state prisoner.

HELD: (1) The court reviews a pro se complaint liberally, but will not supply additional facts or construct a legal theory for the plaintiff. Courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.

(2) Prison officials may not retaliate against an inmate because of his exercise of constitutional rights. This is so even where the action taken would otherwise be permissible. But it is not the role of the federal courts to interfere with daily operation of a state prison. Therefore the plaintiff must prove that, but for the retaliatory motive, the incidents to which he refers would not have taken place.

(3) The claim based on failure to provide a vegetarian diet for Peterson's unnamed religion is no longer actionable. Also, inmates have no right to unfettered visitation.

(4) A private RICO claim can only be brought by a plaintiff claiming a personal injury, arising from the use or investment of racketeering income.

(5) To present a viable claim of denial of access to the courts, an inmate must allege and prove prejudice from the defendant's actions.

Grand Jury - Motion to Quash, Attorney/Client Privilege Asserted by Corporate Officer, Documents Dealing With Corporate Action, Regular Course of Business, Joint Defense Privilege; Appeal - Denial of Motion to Quash, Perlman Exception, Mootness

In Re Grand Jury Proceedings, Intervenor v. United States, 97-3389 (July 15, 1998)

Intervenor appeals from the district court's order denying the motion to intervene and quash grand jury subpoenas for documents or in the alternative for protective orders.

HELD: (1) The denial of a motion to quash a grand jury subpoena is interlocutory and not immediately appealable. The court may entertain jurisdiction if the appeal falls within the Perlman exception, which is available only when the party subject to the subpoena indicates he will comply with the court order upon final adjudication of its validity, and an interlocutory appeal is sought by an intervenor who claims a justiciable interest in preventing disclosure of documents.

(2) A case can become moot during the pendency of an appeal when an event occurs that makes it impossible for the court to grant any effectual relief to the prevailing party.

(3) To determine whether an officer may assert a personal privilege with respect to conversations with corporate counsel despite the fact that the privilege generally belongs to the corporation, there is a five-part test. The officer must show he approached counsel for the purpose of seeking legal advise, demonstrate that he made it clear he was seeking legal advice in his individual rather than representative capacity, counsel saw fit to communicate with him in his individual capacity, knowing a possible conflict could arise, conversations with counsel were confidential, and substance of conversations with counsel did not concern matters within the company or general affairs of the company.

(4) The district court erred in finding that intervenor as a matter of law could not establish the existence of a personal attorney/client relationship, simply because the subject matter of documents related to corporate activities. This court has held that a corporate officer in certain circumstances can show the existence of a personal attorney/client privilege for communications with corporate counsel, even if the subject matter of the communications involved corporate affairs. Nonetheless, such attorney/client privilege can exist only when the officer discusses his or her personal liability, legal rights, or actions, as distinguished from the corporation's rights and responsibilities. Thus, intervenor is not barred as a matter of law from showing that a personal attorney/client relationship may have existed, simply because the documents in question touched on the subject matter of corporate actions. He still has the burden of showing the privilege actually applies to the documents at issue.

(5) Appellant has not adequately demonstrated that any of the documents were limited to the topic of his individual legal rights and responsibilities. Intervenor has failed to establish the documents satisfy the fourth part of the test as to confidentiality. Also the work product privilege only extends to documents prepared by an attorney for the client in anticipation of litigation, and not those prepared in the regular course of business.

(6) To establish a joint defense privilege, intervenor had to show documents were made in the course of a joint defense effort, were designed to further that effort, and the underlying attorney/client privilege has not been waived.

Civil Rights (42 U.S.C. § 1983) - Construe Pro Se Pleadings Liberally; DNA Samples; Religious Practice; Ex Post Facto Clause

Shaffer v. Saffel, 97-7107 (July 14, 1998)

This is an appeal from denial of a pro se state prisoner's civil rights action filed pursuant to 42 U.S.C. § 1983. Oklahoma statutes establish a DNA offender data base in which DNA samples from individuals convicted of specified offenses are collected and maintained for purposes of identifying and prosecuting perpetrators of sex related crimes, violent crimes, or other crimes in which biological evidence is recovered.

HELD: (1) A pro se litigant's pleadings are to be construed liberally.

(2) This court has upheld similar statutes against challenges under the Fourth and Fifth Amendments. It is reasonable, in light of an inmate's diminished privacy rights and the minimal intrusion involved in a legitimate government interest, to require such sample to be given. Also, DNA samples are not testimonial in nature.

(3) A law that is religion-neutral and generally applicable does not violate the Free Exercise Clause even if it incidentally affects religious practice.

(4) Other circuits have upheld similar statutes against an ex post facto clause challenge, holding that because such statutes have a legitimate, non-penal legislative purpose, they do not run afoul of the ex post facto clause.

Motion to Suppress - Review Standard; Confession - Waive Miranda; Outrageous Conduct; Ineffective Assistance of Counsel - Collateral Proceedings

United States v. Gell-Iren, 96-2222 (July 15, 1998)

(Stephen P. McCue, FPD, Albuquerque, New Mexico)

Gell was convicted of possession with intent to distribute heroin.

HELD: (1) In reviewing a denial of a motion to suppress, the trial court's fact findings must be accepted by the appellate court unless clearly erroneous. The ultimate question of whether a statement was voluntary is a question of law reviewed de novo.

(2) The government bears the burden of proving by a preponderance of the evidence that a waiver of Miranda rights was voluntary. Gell's waiver was voluntary and informed. He was informed of his rights, stated he understood his rights, and gave information to agents despite understanding he had the right to counsel and the right to remain silent. He was specifically informed no deals or promises could be made without the involvement of the attorneys. Nothing in the interview's setting was coercive or intimidating. Where a defendant's actions clearly demonstrate he has voluntarily waived his Miranda rights, his failure to sign a waiver of rights form does not render his waiver involuntary.

(3) When the government's conduct during an investigation is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct. The court reviews this claim de novo. Government conduct is outrageous if, considering the totality of the circumstances, the government's conduct is so shocking, outrageous and intolerable that it offends the universal sense of justice. To succeed on an outrageous conduct defense, the defendant must show either excessive government involvement in the creation of the crime or significant governmental coercion to induce the crime. The court saw nothing outrageous in this case.

(4) Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal.

Parole Commission - Consent to Transfer, Life Imprisonment, Parole Eligibility

Verner v. United States Parole Commission,

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

Verner appeals the decision of the Parole Commission sentencing him to life imprisonment with no possibility of parole following his transfer from the Canadian to the United States penal system.

HELD: (1) Verner has not waived or otherwise forfeited his right to challenge the propriety of his life sentence under 18 U.S.C. § 4106A. That statute provides that the Commission's determination of a sentence can be appealed.

(2) The court reviews the Commission's sentencing determination under the Treaty and implementing statutes de novo as to legal conclusions, and gives deference to the Commission's application of law to the facts. The Commission complied with § 4106A in calculating a sentence for Verner under the sentencing guidelines, as if he had been convicted of the same offense for which he had been convicted in Canada. The difference is that the Canadian sentence provided for parole eligibility after 25 years, whereas the Sentencing Commission was unable to include such provision.

(3) The Commission did not violate Article III(9) of the Treaty, which speaks primarily to establishing procedures which were followed in this case. To the extent Article III conferred a substantive right upon a transferred offender, the obligation is to give a legal effect to a foreign sentence, and that can only be accomplished by translating it to a sentence in the receiving state. The laws and standards of the receiving state apply. Under Canadian law, Verner's sentence required him to serve a period certain prior to qualifying for parole consideration, and he had not fulfilled this condition at the time of the transfer. By transferring before his parole eligibility accrued, Verner forfeited the right to insist on its future enforcement outside Canada.

(4) The court rejected Verner's claim that the Commission's sentence constituted a modification of his Canadian sentence in violation of Treaty Article V. That Article speaks to collateral review of a judgment's validity, placing exclusive jurisdiction with the transferring state, and did not address the translation of a sentence given in the sending state to an offender who has been transferred to a receiving state.

(5) 18 U.S.C. § 4105(a) provides that a transferred offender shall remain in the custody of the Attorney General, under the same conditions and period of time as an offender who has been so committed by a court of the United States. That statute is clear as it applies to Verner's Canadian life sentence. His sentence is life regardless of whether he is eligible for parole or not at some time in the future.

Habeas Corpus (28 U.S.C. § 2254) - Different From 28 U.S.C. § 2255; AEDPA - One Year Grace Period

Hoggro v. Boone, 97-6383 (July 24, 1998) - Denying rehearing of case filed June 24, 1998.

That case involved a request for habeas corpus relief and examined the one year statute of limitations and the AEDPA. In order to avoid retroactivity problems the circuits have held that for prisoners whose convictions became final before April 24, 1996, the one year statute of limitations does not run until April 24, 1997. (The actual opinion repeats 1996 but this must be a typographical error). Prisoners whose convictions became final on or before April 24, 1996 must file their § 2255 motions before April 24, 1997. There is a difference between § 2255 and § 2254. The former deals with federal convictions and the latter state convictions. Accordingly, there is language to toll the limitations for any time spent pursuing a state post-conviction relief. See § 2244(d)(2). In contrast, no state proceedings are likely in the context of a federal criminal case. Therefore the firm deadline of April 24, 1997 in Simmonds is appropriate only under § 2255, and the situation is entirely different under § 2254. The district court could not refuse to toll Hoggro's time spent pursuing post-conviction relief in the Oklahoma courts.

Habeas Corpus (28 U.S.C. § 2254); Ineffective Assistance of Counsel - Appellate Counsel, Invited Error; Amendment - Discretion Standard

Parker v. Champion, 96-6291 (July 27, 1998)

(Gloyd L. McCoy, Oklahoma City, Oklahoma)

This is a habeas action pursuant to 28 U.S.C. § 2254. During Parker's second trial on first degree malice aforethought murder, he requested jury instructions on second degree murder. The trial court granted that request and Parker was convicted of second degree murder. He urges that direct appeal counsel was ineffective in failing to argue that such instructions deprived him of notice of the charge for which he was convicted. He concedes the second degree depraved mind murder instruction was proper.

HELD: (1) A claim of ineffective counsel is a mixed question of fact and law reviewed de novo. Under the invited error doctrine, a defendant will not be permitted to request a particular instruction and then contend that the giving of it was error.

(2) Where a party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend is subject to denial within the district court's discretion.

Sufficient Evidence - Review Standard; Conspiracy - Elements, Cocaine or Crack as Object; Indictment - Fail to Object to Defect, Plain Error Review, Acts Charged in Conjunctive; Verdict - General Verdict

United States v. Bell, 97-6164, 6167 (July 28, 1998)

Bell was indicted on a count of conspiracy to distribute cocaine powder and crack. As required by 21 U.S.C. § 851, the government filed an information to establish his prior felony drug offense convictions for purposes of an enhanced sentence. Bell's co-defendants entered into plea agreements. One witness testified he transported cocaine and crack from California and cooked the powder into crack. Another witness testified to purchasing crack from Bell. The PSR set the offense level at 34, added two points for possessing a firearm and set Bell's criminal history category at VI.

HELD: (1) Sufficiency of the evidence presents a question of law reviewed de novo, and the court reviews the evidence in the light most favorable to the government. To prove conspiracy, the government must show an agreement with another person, knowledge of the essential objectives of the conspiracy, knowing and voluntary involvement, and interdependence among the alleged conspirators.

(2) Bell did not object to jury instructions or to the general verdict form. Nor did he object to the alleged defect in terms of specification of the object of the conspiracy at sentencing. Review is for plain error.

(3) The argument that a general verdict fails to designate the object of the conspiracy has been foreclosed by the Supreme Court decision in Griffin v. United States. If an indictment charges several acts in the conjunctive, the jury's verdict stands if the evidence is sufficient with respect to any of the acts charged.

(4) Historically, this circuit has found that plain error where an indictment charged dual objects of a conspiracy, the jury failed to specify the particular object, and the court based its sentence upon the object bearing the greater penalty. But while this appeal was pending, the Supreme Court issued its opinion in Edwards v. United States, 118 S.Ct. 1475, in which the court found no error requiring review, and rejecting this circuit's approach in Pace. It is true that the record contains no findings regarding quantities of cocaine powder attributable to Bell. Put the PSR reported a specific amount of grams of crack cocaine. That quantity is based upon Bell's own objections and reflects the precise amount he urged. In addition when powder cocaine was involved, Bell or others cooked it into crack. The overwhelming evidence showed Bell's involvement in a conspiracy whose object was to distribute crack cocaine. Bell has failed to show any clear and obvious error affecting the fairness, integrity or reputation of the judicial proceedings.

Illegal Alien - Re-Entry After Deportation; Collateral Estoppel Doctrine - Not Apply Against Defendant in Criminal Case, Guilty Plea

United States v. Gallardo-Mendez, 97-4062-4072 (July 28, 1998)

Mendez appeals his conviction for violating 8 U.S.C. § 1326, re-entry into the United States by a deported alien. At his trial, alienage was an essential element of the crime. The district court instructed the jury on the operation of the collateral estoppel doctrine. The jury convicted Mendez and he was sentenced to 96 months imprisonment. The government cross-appealed the sentence.

HELD: (1) The court reviews application of the collateral estoppel doctrine de novo as a question of law. That doctrine stands for the notion that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue can not again be litigated between the same parties in any future law suit. The Supreme Court has not addressed whether collateral estoppel can be applied against the defendant in a criminal case. The court chose to answer only the question of whether the government may use a judgment in a criminal case following a plea of guilty to collaterally estop a defendant from relitigating an issue in a subsequent criminal proceeding. The circuit was not convinced it should accord preclusive effect to guilty pleas because the prospect of being collaterally estopped in the future might discourage criminal defendants from settling criminal charges by pleading guilty. And while wise public policy and judicial efficiency may be reasons to apply collateral estoppel in civil cases, those reasons do not carry the same weight and value in criminal cases. Instead, the liberty interest of a criminal defendant takes priority over the usual concerns for efficient judicial administration so often found in civil cases. The court saw a real leap between applying the collateral estoppel doctrine against a defendant in a civil proceeding related to an underlying criminal transaction to which the defendant plead guilty (a civil rights action pursuant to 42 U.S.C. § 1983), and applying the doctrine against a defendant whose liberty interest is at stake in a successive criminal proceeding arising from a different criminal transaction. Also while Rule 11 insures that a defendant knowingly and voluntarily entered a plea for which there is a factual basis, the Rule 11 safeguards are not tantamount to all the protections afforded by a jury trial. Differences in the proof requirements of subsequent proceedings may preclude application of the doctrine of collateral estoppel. Therefore the court held the government may not use a judgment following a plea of guilty to collaterally estop a criminal defendant from relitigating an issue in a subsequent criminal proceeding. This violates due process.

Criminal Justice Act Applications - Access of Press

United States v. Gonzales, 97-2064, 2095, 2101, Albuquerque Journal Intervenor, NACDL Amicus (July 28, 1998)

In this case the court had to determine whether the press has a constitutional, common law or statutory right of access to court's sealed fee, costs and expense applications and related information filed under the Criminal Justice Act, 18 U.S.C. § 3006A, by court appointed criminal defense attorneys, as well as transcripts from hearings and court orders concerning these applications. The circuit held there is no First Amendment right of access to documents provided as back up detail for CJA vouchers or certain related motions, orders and transcripts; there is no right of access to CJA vouchers or related information pursuant to the common law because, even if relevant common law previously existed on the subject, it has been supplanted by the CJA, and the press has no statutory right of access to the materials in question, but the court has discretion to release certain material subject to certain conditions. The court acted within its discretion in ordering the release of the CJA vouchers at the end of all defendants' sentencing hearings, and in ordering the release of the total amounts expended in individual cases at the end of each defendant's sentencing hearing. But the court abused its discretion in ordering the unconditional release of the sealed back up documents, motions, orders, and transcripts at the end of all defendants' sentencing hearings, because the court incorrectly concluded that the interest governing whether or not particular information should be redacted or remained under seal terminated at the conclusion of the trials. The court denied Albuquerque Journal's application for a writ of mandamus and granted the writ of mandamus to the defendant.

Investigative Stop - Reasonable Suspicion, Further Detention

United States v. Salvano, 97-3337 (July 28, 1998)

The circuit reversed the district court's denial of Salvano's motion to suppress.

HELD: (1) An investigative stop must be justified at its inception and the resulting detention must be reasonably related in scope to the circumstances which justified the interference in the first place. In the absence of probable cause or a warrant, the officer must have an objectively reasonable and articulable suspicion. The government bears the burden of proving this. Salvano does not contest justification for this stop, but says that once the trooper terminated the traffic stop by handing him back his paperwork, the trooper lacked a reasonable suspicion of criminal activity necessary to justify the further detention. The court considers the factors in their totality. The decision to drive rather than fly cannot support a reasonable suspicion. The mere fact a vehicle has a large capacity cannot support reasonable suspicion. The fact that the rental agreement indicated three persons would be traveling, but Salvano was traveling alone also, cannot be a basis. Nor can Salvano's apparent nervousness. The smell of evergreen may give rise to reasonable suspicion, but in this case there was a large fresh cut natural evergreen wreath in the motor home searched. The fact that one hails from a state known for drug trafficking is not sufficient. An aggregation of individual null factors will almost always amount to a null set.