Indictment - Dismissal, Abuse of Discretion;

Motion to Suppress - Review Standard;

Traffic Stop - Informant, Reasonable Suspicion, Duration of Stop;

Admissions - In Course of Plea Discussions;

Sentencing - Review Standard;

Firearm Guideline - Prior Drug Conviction, Firearm in Connection With Another Felony, Double Counting;

Downward Departure - Lack of Jurisdiction

United States v. Browning, 00-8055 (June 14, 2001)

Browning entered a conditional guilty plea to felon in possession.

HELD: (1) The court reviews the denial of a motion to dismiss the indictment for abuse of discretion. As to a motion to suppress, the trial court's fact findings are reviewed for clear error, and the ultimate determination of Fourth Amendment reasonableness is reviewed de novo.

(2) The court rejected Browning's argument under Florida v. J.L., that the 911 call did not provide an adequate basis for stopping him. The police had a caller who explained how she knew about the wrongdoing and provided a basis for showing she had inside information. That information supplied the police with reasonable suspicion to justify the initial stop under Terry v. Ohio. Nor was there any excessiveness in the duration of the stop of 20 to 30 minutes, during which Browning moved his car to a safer place, consented to the search and answered questions.

(3) Browning also claims his statements to DEA agents were inadmissible under Rule 11(e)(6)(D), which prohibits admission of any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty. Browning was not speaking with an attorney for the government, nor does Browning point to any evidence that the DEA agents had expressed authority to conduct plea negotiations.

(4) As to sentencing, the court reviews for clear error any fact findings regarding sentencing and reviews de novo the district court's legal interpretation of the guidelines.

(5) Section 2K2.1(a)(4)(A), provides a base offense level of 20 if the defendant had one prior felony conviction of either a crime of violence or controlled substance offense. The district court determined that Browning's Wyoming conviction constituted a controlled substance offense under §2K2.1(a)(4)(A) and §4B1.2(b) and application note 1.

(6) Section 2K2.1(b)(5) provides for a four level increase in offense level if the defendant used or possessed any firearm in connection with another felony offense. If the weapons facilitated or had the potential to facilitate the underlying felonies, then the enhancement is appropriate. A weapon's proximity to narcotics may be sufficient to provide the necessary nexus.

(7) As to Browning's claim that using the same felony under both §2K2.1(a)(4)(A) and §2K2.1(b)(5) to enhance a sentence constitutes double counting, impermissible double counting occurs when the same conduct is used to support separate increases under separate enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes.

(8) The district court denied Browning's request for a downward departure based on a difficult childhood. Section 5H1.12 prohibits downward departures for lack of guidance as a youth, and similar circumstances indicating a disadvantaged upbringing. Courts have distinguished between that guideline provision, and granting a downward departure to a defendant who has suffered extreme psychological and physical abuse as a child. The court lacks jurisdiction to review the denial of a downward departure, unless a district court erroneously and unambiguously states it lacks authority to grant the request. Although what the district court said might indicate that the district court made a legal decision that it had no authority to depart, the circuit nonetheless held its prior precedent in Castillo forecloses review.

Child Pornography - Use of Computer to Solicit Minor's Participation;

Guideline Interpretation - Review, Statutory Construction

United States v. Reaves, 00-8026 (June 15, 2001)

Defendant pleaded guilty to several counts of production of child pornography and transportation, distribution and possession of child pornography. The district court relied on §2G2.1(b)(3) to increase defendant's offense level by two levels, over the defendant's objection.

Defendant used his computer to show sexually explicit imagery to his victims both before and after their participation in sexually explicit conduct. He obtained the images from various internet sources. He expected that these images would entice them to engage in illicit sexual conduct. But there is no evidence that defendant directly asked the victims to participate in child pornography via the computer be it by e-mail or in chat rooms. The district court ruled that the defendant used his computer to solicit the minors' participation. The court did not expressly define "solicit" but relied on a relatively broad definition of the term. On appeal, the defendant argues that solicit means "to directly ask or request" not "to entice, lure or encourage."

HELD: (1) The court reviews for clear error the district court's fact findings and gives due deference to the court's application of the guidelines to the facts. The court reviews de novo the legal question of how to interpret §2G2.1(b)(3). The court interprets the guidelines according to accepted rules of statutory construction. The court considers not only the bare meaning of the word "solicit," but also its placement and purpose in the statutory scheme. The rule of strict construction is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers. Standing alone, "solicit" could mean a number of things according to the dictionary. However, the Commission's intent is apparent once the court considers the Congressional directives that motivated the creation of §2G2.1(b)(3). The Sex Crimes Against Children Prevention Act of 1995 directed the Sentencing Commission to increase base offense levels for violations of 18 U.S.C. § 2251, § 2252, and § 2423, and to increase the base offense level if a computer was used to transmit the notice or advertisement to the intended recipient or to transport or ship the visual depiction. Considering the varied meanings of "solicit" in light of manifest Congressional intent convinced the circuit that the broader interpretation of solicit as to "lure or entice" is correct. The defendant's conduct easily warrants the two level increase.

Medicare Anti-Kickback Act - Primary or In Part Purpose, Pay-For-Patients Scheme;

Appellate Review - Decision of Another Panel, Claim Not Raised Below, Invited Error Doctrine, Law of Case, Failure to Cite to Record;

Void For Vagueness - Facial or as Applied, Notice and Adequacy of Enforcement;

Conspirator Hearsay - Lawful Common Plan, Discretion, Confrontation Clause;

Motion For New Trial - Variance;

Use Immunity - Government's Prerogative, No Inherent Authority of Court, Government Misconduct

United States v. LaHue, 99-3344, United States v. Anderson, 99-3347,

United States v. LaHue, 99-3352 (June 18, 2001)

The three defendants were convicted of violations of the Medicare Anti-Kickback Act. The LaHues were the osteopathic physicians, Anderson was President and CEO of Baptist Medical Center, and attorneys Lehr and Thompson represented Baptist. In 1985 Baptist entered into a contract with the LaHues. The arrangement evolved into a consulting contract in 1986 with an unusually high annual consulting fee. Anderson directed those payments. When the payments began, the LaHues referred massive numbers of patients to Baptist, with a corresponding halt in referrals to the University Hospital with which they had previously been associated. Anderson made it clear to Baptist's director of Alternative Care Services that this was a business deal in which Baptist paid money to Blue Valley in return for patient referrals. In 1985 the LaHues approached Anderson for help in managing their practice. Anderson placed one of Baptist's employees with Blue Valley soon after, but kept him on the Baptist payroll. This person, Mr. Eckard, understood his primary job responsibility was to maintain Baptist's relationship with Blue Valley, in order to insure the continued flow of patients to the hospital. Anderson and Baptist were aware that Blue Valley never compensated Baptist for Eckard's management services. Other than the referrals, the LaHues performed very few actual services in return for the substantial annual sum they were paid. The district court found that Anderson knew the payments he directed were more than fair market value for consulting services. The LaHues and Baptists benefitted greatly from their relationship. With Mr. Eckard's assistance, Blue Valley entered into similar arrangements or contracts with four other hospitals.

The LaHues, Anderson and others, and the attorneys were indicted on conspiracy and substantive counts of violating 42 U.S.C. § 1320(a-7)(b)(b). At the close of the government's case, the district court granted the attorneys' motions for acquittal, ruled the government failed to present sufficient evidence to demonstrate that any defendant but the LaHues participated in a conspiracy extending to six other hospitals, severed false claims and witness tampering counts as improperly joined, and dismissed one of the substantive counts against the LaHues on a statute of limitations ground. The jury convicted Anderson and McClatchey of charges against them and convicted Ronald LaHue of conspiracy and four substantive charges, and Robert LaHue of conspiracy and six substantive charges. The court granted motions for judgment of acquittal as to certain charges. The government had appealed the judgment of acquittal and alternative grant of new trial for McClatchey, and the Tenth Circuit reversed and remanded with instructions to reinstate the jury verdict against McClatchey.

HELD: (1) Defendants argue that a defendant should not be convicted under the Act when his offer, payment, solicitation, or receipt of remuneration was motivated merely in part to induce or in return for referrals. Defendants suggest conviction is only appropriate when the motivation to induce or in return for referrals was the primary purpose. This is an issue of first impression in this circuit. The "one purpose" standard was annunciated by the Third Circuit. In McClatchey, another panel rejected the argument that the district court improperly instructed the jury it could convict if remuneration was paid at least in part to induce patient referrals. This court is bound by precedent of prior panels absent en banc review. The reasoning of McClatchey applies equally to remuneration solicited or received in return for Medicare or Medicaid patient referrals. Precedent of prior panels includes not only the very narrow holdings of those prior cases but also the reasoning underlying those holdings, particularly when such reasoning articulates a point of law.

(2) When reviewing a statute alleged to be vague, courts indulge a presumption that it is constitutional, and the statute must be upheld unless the court is satisfied beyond all reasonable doubt that the legislature went beyond the confines of the Constitution. Defendants argue that the court's "one purpose" interpretation is unconstitutional on its face and as applied. The facial challenge is prohibited, because such challenges are permitted only when the statute threatens to chill constitutionally protected conduct. A vagueness as applied challenge requires that a penal statute define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement. As to fair notice, one to whose conduct a statute clearly applies may not successfully challenge it for vagueness. The defendants' conduct is the very conduct contemplated by the Act. The evidence produced at trial demonstrated that the defendants knew their conduct, which was clearly a pay-for-patients scheme, was prohibited by the Act.

(3) Regarding the adequacy of enforcement standards, due process requires that legislation state reasonably clear guidelines for law enforcement officials, juries, and courts to follow in discharging their responsibility of identifying and evaluating allegedly illegal conduct. A statute is unconstitutionally vague if its language and construction by the courts vest authority in law enforcement and juries to assign their own subjective meaning to an element of the offense. The Act explicitly prohibits any remuneration knowingly and willfully offered or paid to induce, or solicited or received in return for, Medicare or Medicaid patient referrals. Enforcement of the Act as applied to the defendants was not arbitrary or discriminatory. The instructions by the court to the jury regarding application of the Act allow business relationships between a hospital and physician where the motivation to enter into the relationship is for legal reasons entirely distinct from the collateral hope for or decision to make referrals.

(4) Rule 801(d)(2)(E), F.R.Ev., excludes from the hearsay prohibition statements by a co-conspirator of a party during the course and in furtherance of the conspiracy. Defendants challenge the district court's conclusion that the word "conspiracy" includes a lawful common plan, and therefore argue that documents related to such plan are inadmissible. Evidentiary rulings are committed to the discretion of the trial court and are reviewed only for abuse of discretion. An abuse of discretion occurs when the district court bases its decision on an erroneous conclusion of law. Interpretation of the Federal Rules of Evidence is an issue of law reviewed de novo. Rule 801(d)(2)(E) contemplates a lawful common plan. The rule is applicable in both civil and criminal cases and is based on general principles of agency and partnership law. To prove the existence of a conspiracy, the government must prove by substantial independent evidence the existence of a common plan, whether lawful or unlawful, and on doing so, the government may use the declarations themselves to prove the element of illegality.

(5) Requirements of Rule 801(d)(2)(E), and Confrontation Clause are identical.

(6) In the alternative, admission of the disputed documents constitutes harmless error.

(7) Where a Confrontation Clause objection is not explicitly made below, the circuit will not address the constitutional issue in the absence of a conclusion that it was plain error for the district court to fail to raise the issue sua sponte. Because the defendants did not respond to the government's argument in their reply, the court deemed the issue waived. Therefore review is under the non-constitutional harmless error standard. A non-constitutional harmless error is one that does not have a substantial influence on the outcome of the trial, nor does it leave one in grave doubt as to whether it has such effect.

(8) In ruling on motions for new trial, the district court stated it agreed that there were two variances in the case: the variance the court recognized at trial when it narrowed the count one conspiracy, and the variance with respect to the government's failure of proof as to the lawyer defendants. The first is the "other hospitals variance," the second is the "attorney defendants variance." Despite these variances, the district court denied motions for new trial. Whether a variance between an indictment and the case presented at trial is sufficiently prejudicial to warrant a new trial is a question of law. A new trial is only necessary if the variance substantially prejudiced the defendant's right to a fair trial. In McClatchey, this court faced the same two variances at issue here, concluding that neither variance substantially prejudiced McClatchey's right to fair trial, and reversed the district court's decision to grant McClatchey's motion for new trial. Because Anderson and the LaHues were tried together, the law of the case doctrine controls the "other hospitals variance" issue, and, in combination with the invited error doctrine, also controls the "attorney defendants variance" issue.

(9) The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. When a rule of law has been decided adversely to one or more co-defendants, the law of the case doctrine precludes all other co-defendants from relitigating the legal issue. The court will depart from the law of the case doctrine when the evidence in a subsequent trial is substantially different, when controlling authority has subsequently made a contrary decision of law applicable, or when the decision was clearly erroneous and would work a manifest injustice. The defendants claim error regarding the jury's knowledge of the attorney/defendants' acquittals. The circuit concluded this did not substantially prejudice their right to a fair trial. The jury was informed by defendants' counsel during their closing argument. The invited error doctrine applies and no prejudice was suffered. Defendants' argument on appeal is a complete reversal from the position asserted during closing argument.

(10) The LaHues claim the district court abused its discretion by refusing to grant use immunity to twelve proposed defense witnesses who invoked the Fifth Amendment and refused to testify at trial. They argue the government committed misconduct which authorized the district court to grant use immunity. The district court had ruled that there was no indication the government engaged in a deliberate attempt to distort the fact finding process. The court reviews the district court's decision for abuse of discretion. The power to apply for immunity is the sole prerogative of the government. Courts have no inherent authority to grant a witness use immunity. However, where the prosecutor's denial of immunity is a deliberate attempt to distort the fact finding process, a court could force the government to choose between conferring immunity or suffering an acquittal. The court did not decide the legal question, and was not persuaded to overturn the district court's finding because the LaHues failed to cite the precise reference in the record where the issue was ruled on, and a district court's pretrial ruling is critical. The LaHues did not identify the twelve individuals at issue, provide a record citation for the proffer, or explain how their testimony would be material, exculpatory and not cumulative as well as unavailable from any other source. The circuit would not sift through this voluminous record to find support for the LaHues' claims.

Supervised Releases Revocation;

Assault on an Officer of United States (18 U.S.C. § 111(a)) - Element of Force, Threat of Immediate Harm

United States v. Disney, 00-2195 (June 19, 2001)

(James P. Moran, FPD, Denver, Colorado)

Disney was charged with narcotics and firearms violations. He pleaded guilty and was sentenced to a term of imprisonment followed by a three year term of supervised release, a condition of which was that he not commit another crime. While on supervised release, Disney met Haycox at a bar. Haycox is an officer with the Bernalillo County Sheriff's Department. In the course of the conversation, Disney discovered that Haycox was acquainted with Michael Marshall, a DEA agent who was involved in Disney's arrest and conviction. Disney asked Haycox for Marshall's home address and the birth date of Marshall's wife. Haycox testified that Disney said "Do you know what I wish for more than anything in the world. . . . to have Mike Marshall's home address and his wife's birth date so I can send them a Christmas card and, also, just so Mike Marshall knows that I know where he lives." Haycox contacted Marshall and informed him of Disney's request.

The government filed a petition for revocation of supervised release alleging a violation of 18 U.S.C. § 111(a) and violation of the terms of supervised release. Disney's supervised release was revoked and he was sentenced to ten months imprisonment and a one year term of supervised release.

HELD: (1) The district court must find by a preponderance of the evidence that the defendant violated a condition of his supervised release. The court reviews the decision to revoke supervised release for abuse of discretion. Legal questions related to revocation are reviewed de novo. The district court abuses its discretion when it makes an error of law.

(2) Section 111(a) makes it a crime to forcibly assault, resist, oppose, impede, intimidate, or interfere with an officer or an employee of the United States while that individual is engaged in or on account of the performance of official duties.

(3) In contrast, § 115(a)(1)(B) does not contain any language requiring an element of force. The use of the word forcibly in § 111(a) narrows the conduct prohibited by that statute, such that conduct sufficient to constitute a violation of § 115 is not necessarily sufficient for § 111(a). The circuit rejected the government's argument that § 111(a) criminalizes threats made outside the presence of the individual who is the object of the threat. If the force element of § 111(a) is to be established by proof of threats, rather than by proof of actual touching, the threat must have been of immediate harm. Any threat made by Disney was not coupled with a present ability to inflict harm on Agent Marshall. Thus, the conduct did not constitute a violation of § 111(a).

Guideline Interpretation;

Obstruction of Justice - Escape, Half-Way House as Custody;

Acceptance of Responsibility

United States v. Swanson, 00-2286 (June 19, 2001)

(Benjamin A. Gonzales, FPD, Albuquerque New Mexico)

Swanson pleaded guilty to conspiracy to manufacture methamphetamine. The district court enhanced his sentence for obstruction of justice and denied a reduction for acceptance of responsibility. Swanson was released to a halfway house pending sentencing and remained at large. He argues his flight was motivated by the need to protect loved ones from danger and urges that a halfway house is not "custody."

HELD: (1) The court reviews findings of fact for clear error and interpretation of the guidelines de novo. In addition to actions that interfere with judicial truth seeking, such as perjury and witness tampering, note 4 of §3C1.1 includes escaping or willfully failing to appear for a judicial proceeding. Swanson's motivations are beside the point. The question is whether he willfully fled custody. Even if Swanson feared for his girlfriend's safety, there were legitimate options instead of choosing to escape.

(2) The term "custody" may vary in meaning when used in different contexts. The definition of custody under a guideline analysis may be broader than the definition needed to support a substantive charge of felony escape. A failure to report by one released on bond is comparable to an escape from custody as well.

(3) Originally, Swanson's presentence report included a recommendation for a reduction for acceptance of responsibility due to his guilty plea. But this recommendation was rescinded after his flight because, at the time of his arrest, he acknowledged ownership of methamphetamine paraphernalia in his residence and admitted he was attempting to manufacture methamphetamine. The trial court's determination of acceptance of responsibility is subject to great deference. Absent extraordinary circumstances, a defendant's obstruction of justice indicates the defendant has not accepted responsibility. Conduct amounting to escape or failure to appear is evidence of failure to accept responsibility.

Amount of Loss;

Use of Minor to Commit Offense (§3B1.4);

Organizer or Leader;

Acceptance of Responsibility

United States v. Suitor, 00-5182 (June 19, 2001)

Suitor pleaded guilty to conspiracy to make, utter and possess forged securities and false representation of a social security number.

HELD: (1) The court reviews the district court's fact findings related to sentencing for clear error and reviews legal conclusions de novo.

(2) In a conspiracy case, loss is calculated on the basis of all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity that occurred during the commission of the offense of conviction. There is sufficient evidence to support the district court's finding of loss in excess of $20,000.

(3) The guidelines provide for a two level increase if the defendant used or attempted to use a person less than 18 years of age to commit the offense. Under §3B1.4, the increase only applies if a defendant directs, trains, or in some other way affirmatively engages the minor participant in the crime of conviction. The evidence must demonstrate more than the simple fact that Suitor was involved in a conspiracy with the minors. There was sufficient evidence to enable the court to conclude that Suitor "used" the minor girls as that term is defined in §3B1.4.

(4) Section 3B1.1 deals with organizer or leader adjustment, and commentary note 4 delineates the factors to be considered in determining whether a defendant is an organizer or leader. The district court's finding was not clearly erroneous.

(5) The district court's conclusion that Suitor acted in a manner inconsistent with acceptance of responsibility by continually denying relevant conduct is not clearly erroneous.

Guideline Interpretation;

Sex Act With Child - Use of Force and Age Enhancements Do Not Constitute Double Counting, Level of Force

United States v. Wille, 00-2186 (June 19, 2001)

(Susan Bronstein Dunleavy, FPD, Albuquerque, New Mexico)

Wille pleaded guilty to one count of engaging in a sexual act with a child under the age of 12. This involved the raping of his 10 year old daughter on numerous occasions.

The base offense level was 27. The court adjusted the sentence upward by 4 levels for use of force in commission of the crime, and by 4 additional levels because the victim was under the age of 12. The court enhanced the sentence by two levels because the victim was in his care and custody. The court did adjust the sentence downward by two levels for acceptance of responsibility and another level for cooperation with the investigation. Wille's offense level was 34 and he was sentenced to 151 months within the range of 151-188 months.

HELD: (1) The court reviews the district court's interpretation and application of the guidelines de novo, and upholds fact findings unless clearly erroneous.

(2) Wille argues adjusting his sentence upward for both age of victim and use of force is punishing the same conduct twice because a child never consensually participates in a sexual act with an adult and there is therefore always implicit force. The court held that the force enhancement and age enhancement serve distinct purposes and aim at different harms. See Reyes-Pena.

(3) Wille argues he did not use actual force in the rape of his daughter. The circuit rejected that argument stating that the enhancement for use of force on its face does not specify the level of force necessary for the enhancement to be appropriate. Force may be inferred by such facts as relative size of the victim and assailant, and disparity in coercive power such as between an adult and a child. Wille weighed 290 pounds. His daughter was 10 years old. He was her natural father and had obvious authority over her. The victim attempted to evade her father's abuse by asking her sister to sleep on the same couch. Despite her efforts, Wille came to the couch, picked her up and carried her to his bed. The sexual abuse that occurred on the particular night took place in the context of a two year history of abuse including threats and spanking with a belt, wire and plyers.

Bivens - Conditions of Confinement, Federal Prisoner, Damages, Qualified Immunity;

Denial of Medical Care;

Summary Judgment - Appeal, Legal Question

Garrett v. Stratman, 00-1028 (June 20, 2001)

(Dennis W. Hartley, Colorado Springs, Colorado)

This is an appeal from denial of Garrett's Bivens lawsuit alleging denial of medical care in violation of the Eighth Amendment.

Garrett is serving a life sentence at the United States Penitentiary in Florence, Colorado. The district court denied Stratman's motion for summary judgment on the matter of qualified immunity, and granted Garrett's motion for additional discovery pursuant to Rule 56, F.R.Civ.P. The circuit concluded it lacked jurisdiction and dismissed Stratman's appeal of those rulings. Stratman is the practicing physician and was clinical director at ADX.

HELD: (1) A prison official violates an inmate's clearly established Eighth Amendment rights if he acts with deliberate indifference to an inmate's serious medical needs -- if he knows of and disregards an excessive risk to inmate health or safety. To demonstrate a violation, an inmate must satisfy both objective and subjective elements. The objective component is met if the deprivation is sufficiently serious. The subjective component, deliberate indifference, is met if the prison official both was aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Delay in medical care only constitutes an Eighth Amendment violation when the plaintiff can show that the delay resulted in substantial harm such as life long handicap, permanent loss or considerable pain.

(2) Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, damages may be obtained for injuries consequent upon a violation of the Eighth Amendment by federal officials. The doctrine of qualified immunity is intended to protect the public interest by encouraging public officials to act independently and without fear of the consequences, if there is no violation of clearly established rights. The question of whether a given right was clearly established is a question of law, but resolution of qualified immunity may sometimes require a fact related determination.

(3) The court generally lacks jurisdiction to review denials of summary judgment, but can review certain denials when they involve qualified immunity. Subject matter jurisdiction cannot be waived. A district court's denial of a defendant's summary judgment motion based on qualified immunity is an immediately appealable collateral order when the issue appealed concerns whether certain facts demonstrate a violation of clearly established law. Courts of appeals lack jurisdiction to review summary judgment orders deciding qualified immunity questions solely on the basis of evidence sufficiency.

(4) The district court concluded that a genuine issue of material fact existed as to whether Stratman acted with deliberate indifference. Also in genuine dispute was the existence of substantial harm. The district court pointed to specific facts. The circuit was without jurisdiction to scrutinize the district court's conclusion beyond taking a quick look. The court would not consider an issue not raised or addressed below.

(5) The district court decided as an initial matter to deny summary judgment on qualified immunity because genuine issues of fact existed regarding intent, personal participation and Garrett's injury. As a result, the policy supporting immediate appeals over discovery orders in the qualified immunity context is not implicated, and the discovery order is not necessarily immediately appealable.

(6) A collateral order may be immediately appealable under 28 U.S.C. § 1291 if it conclusively determines a disputed question, resolves an important issue separate from the action's merit, and is effectively unreviewable on appeal from a final judgment. Stratman gives no reason why his appeal of the district court's discovery order meets these requirements.

Motion to Vacate (28 U.S.C. § 2255) - AEDPA;

Successive Motion - Authorization From Circuit to File Motion in District Court, Procedural Default, Cause and Prejudice, Retroactivity of New Rule Under Teague, Supreme Court Must Decide Retroactivity;

Retroactivity of Statute - AEDPA Provisions, Landgraf;

Teague Retroactivity - New Rule, Watershed, Applies to Federal Post-Conviction Motions;

Apprendi

Daniels v. United States, 00-6298 (June 25, 2001)

(Howard A. Pincus and Vicki Mandell-King, FPD, Denver, Colorado)

Steve Daniels sought authorization from the Tenth Circuit to file a § 2255 motion in which to raise an Apprendi claim. Daniels' case was companioned with Browning and most of the issues were resolved in that decision. However, Daniels also presented the issue of whether it would be a retroactive application to apply the AEDPA successive motion provision to him, because his prior § 2255 motions were filed before the AEDPA was enacted.

HELD: (1) Under the AEDPA, a second or successive habeas motion cannot be filed unless the claim is based on a new rule of constitutional law made retroactive by the Supreme Court.

(2) To file a second or successive motion, a prisoner must obtain authorization from the Circuit. It is proper to apply the AEDPA's procedural framework to all second or successive motions.

(3) As far as substantive changes, the Landgraf retroactivity analysis focuses on whether a change in law would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.

(4) The pre-AEDPA test for legal claims raised in a second or successive habeas involves whether the new claim was procedurally defaulted as an abuse of the writ because it was not raised in earlier petitions, and then, if the claim was not defaulted, asking whether the new rule of law would be retroactively applied under Teague v. Lane.

(5) In order to overcome procedural default, a petitioner must show cause and prejudice. To show cause, a petitioner must show that his efforts to raise the claim at earlier stages were impeded by some objective factor external to the defense, such as where the factual or legal basis for a claim was not reasonably available to counsel during earlier proceedings. Under Reed, cause is present if a constitutional claim is so novel that its legal basis was not reasonably available to counsel prior to the change in the law. The Supreme Court in Bousley narrowed the broad Reed novelty test, holding that a claim is not novel where Federal Reporters were replete with cases involving challenges to the legal regime at issue. Even if it appears futile to attempt a particular legal argument, that futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time. If a petitioner succeeds in showing cause for failure to raise the new legal claim, he must then demonstrate actual prejudice. He must show, not merely that the errors created a possibility of prejudice, but that the errors worked to his actual and substantial disadvantage, infecting his entire trial.

(6) When a petitioner surmounts procedural bar, then the next hurdle is under Teague, which holds that new constitutional rules of criminal procedure will not be applicable on collateral review. A case announces a new rule if the result was not dictated by precedent existing at the time the conviction became final. There are two exceptions to Teague's general non-retroactivity rule. The first exception states that a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe. The second exception allows for retroactive application of watershed rules that require the observance of those procedures that are implicit in the concept of ordered liberty.

(7) Teague applies to a federal motion to vacate sentence as well as state habeas corpus petitions. The Teague non-retroactivity rule is based, not only on comity, but also on principles of finality.

(8) A showing of cause to excuse procedural default requires that a new rule be so novel that it was not reasonably available for argument in the past. In contrast, Teague bars retroactive application of any new rule not dictated by prior precedent. If one has cause for not raising a constitutional claim because it is sufficiently novel, that same novelty insures the claim is barred from application on collateral review as a new rule under Teague, unless one of the two exceptions applies. If pre-AEDPA law is applied to Daniels' habeas application, he can succeed in raising his Apprendi claim only if the new rule is novel enough to constitute cause under the cause and prejudice test and also fits one of the two exceptions to Teague's presumption against retroactivity.

(9) The AEDPA replaces both Teague and the cause and prejudice test. Therefore now, to file a successive motion, the claim must be based on a new rule of constitutional law made retroactive by the Supreme Court. The AEDPA also requires that the claim had been previously unavailable.

(10) In this case there is no retroactive effect in applying the statute. Both before and after the AEDPA, the new rule must meet Teague's second exception. Because the question of whether Apprendi fits that exception for successive habeas applications is left to the exclusive province of the Supreme Court after the AEDPA, the circuit did not attempt to address the question here. The court held that the new AEDPA substantive standards work no impermissibly retroactive effect as applied to Daniels' application. Therefore, the court applied the post-AEDPA § 2255 standard to his habeas application. Because Apprendi has not yet been made applicable to cases on collateral review by the Supreme Court, the holding in Browning required that Daniels' application be dismissed.

Instructions - Lesser Included Offense, Bank Larceny, Bank Robbery;

Plain Error Review - Failure to Object;

Career Offender - Crime of Violence, Categorical Approach

United States v. Riggans, 00-3188 (June 28, 2001)

Riggans was convicted of bank larceny and sentenced to 120 months imprisonment and 30 years of supervised release. Riggans had requested that the jury be instructed on bank larceny under 18 U.S.C. § 2113(b), as a lesser included offense of bank robbery. The district court granted the request. Without objection, the court instructed the jury that the elements of bank larceny were the taking of property, money, or anything of value, exceeding $1000 in value, in the care, custody, control, management or possession of a bank, and that the bank was FDIC insured.

HELD: (1) In Carter v. United States, the Supreme Court held that bank larceny was not a lesser included offense of bank robbery. The Court held that bank larceny requires three elements not required by bank robbery -- intent to steal or purloin, taking and carrying away of property, and a valuation of the property taken. Contrary to Riggans' contention, intent was not omitted from the jury instructions. The jury was instructed that an element of bank larceny was the specific intent to do an act the law forbids. Viewing the instructions as a whole, the court had no doubt the jury was fairly guided on the issue of intent.

(2) While the instructions failed to instruct on the element of carrying away, Riggans failed to object at trial. The court asks whether there is error that is plain and that affects substantial rights and, if so, the court will exercise its discretion to notice the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. In light of Carter, the district court did commit plain error by failing to instruct on the element of carrying away, but the court would not exercise its discretion to notice the error where the evidence was overwhelming that Riggans carried the money away from the bank.

(3) Riggans was sentenced as a career offender under §4B1.1. The district court found the "otherwise" clause of §4B1.2(a)(2) applied, because Riggans' conduct presented a potential risk of physical injury to others. Whether bank larceny as a matter of law can never be a crime of violence is a claim reviewed de novo. The circuit held that bank larceny may present a serious potential risk of physical injury to others. While a categorical approach is required due to the practical difficulties of conducting a mini-trial as to past convictions, these concerns do not apply when the court is examining the conduct of the defendant in the instant offense. In this situation, a conduct-specific inquiry is permissible. The inquiry is whether the conduct for which the defendant was convicted constitutes a crime of violence. The fact that the commentary has been amended to include the parenthetical phrase "expressly charged" does not confine the inquiry to the indictment.

Plain Error Review - Claim Not Raised Below;

Apprendi - Drug Quantity Not Charged in Indictment or Admitted at Plea

United States v. Cernobyl, 00-7033 (June 29, 2001)

Cernobyl pleaded guilty to possession of marijuana with intent to distribute. The district court calculated his sentence on the basis of marijuana in his home and car, as well as on the basis of his own admission that he had transported large amounts of marijuana over an extended period of time. On appeal, the circuit held that 21 U.S.C. § 841 is not facially unconstitutional in light of Apprendi, but that the district court's sentence constituted plain error in light of Apprendi.

HELD: (1) Review is for plain error, and reversal is warranted if there is an error, that is plain or obvious, affects substantial rights, and seriously affects the fairness, integrity or public reputation of judicial proceedings.

(2) In light of Apprendi, the quantity of drugs involved in a violation of § 841 is an essential element of the offense if that fact exposes the defendant to a higher maximum sentence. In order to increase a defendant's sentence for a conviction pursuant to § 841, drug quantities must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt.

(3) Section 841 remains constitutionally enforceable notwithstanding Apprendi. The circuit is no longer bound by pre-Apprendi holdings that drug quantity determinations may be determined by a preponderance. This is because the circuit is now bound by the Supreme Court interpretation of the due process clause in Apprendi. Apprendi does not hold that legislatures can no longer have separate statutory provisions governing a substantive offense and sentencing factors. Apprendi merely recognizes that the due process clause entitles defendants to certain procedural protections, regardless of whether a statutory provision is styled as a substantive offense or as a sentencing factor. Section 841(b) is silent on the question of what procedures courts are to use in implementing its provisions, and therefore Apprendi does not conflict with the explicit terms of the statute. The practice of allowing judges to sentence on the basis of quantities neither charged nor submitted to a jury arose only after implementation of the sentencing guidelines.

(3) The district court plainly erred in applying § 841(b) in light of Apprendi. The indictment did not charge any specific quantity of marijuana and Cernobyl's plea agreement did not admit to possessing a specific quantity. Cernobyl was sentenced to 87 months. Section 841(b)(1)(D) sets forth a maximum sentence of 60 months for persons convicted of possessing fewer than 50 kilograms of marijuana. That subsection defines the maximum sentence exposure for Cernobyl. The 87 month sentence exceeded the 60 month maximum. This is not a case where the court could avoid reversing Cernobyl's sentence because the evidence is overwhelming or uncontroverted. The evidence was sufficient to satisfy a preponderance standard for purposes of findings of relevant conduct under the guidelines, but a remand is nonetheless necessary because the sentence exceeded the statutory maximum of 60 months.