Sexual Abuse - Rule 414(a) Evidence;

Admission of Evidence - Rule 414(a), Affirm on Other Ground, Character, Harmless Error;

Witnesses - Confrontation, Lack Recollection, Character, Specific Acts (Rule 608);

Instructions - Rule 414(a);

Jurors - Misconduct, Hearsay;

Continuance - Discretion

United States v. McHorse, 98-2123 (June 3, 1999)

McHorse is a resident of the Taos Pueblo, New Mexico. A jury convicted him of multiple counts of aggravated sexual abuse of a child and one count of abusive sexual contact in violation of 18 U.S.C. § 2241(c) and § 2244(a)(1). He is the uncle of the victims named in the indictment. The indictment alleged that between 1992 and 1994, defendant engaged in sexual acts with the three victims all of whom were under 12 years of age at the time. One victim testified she was 8 when the defendant began sexually abusing her, played strip poker, showed porn movies and gave her and her half sister alcohol. The half sister testified similarly. The youngest sister visited the defendant and his wife less frequently. The government also introduced testimony of two other alleged victims under Rule 414(a). Another witness said that one of the victims confided in her but made her promise not to tell. A psychotherapist who counseled all three victims testified. A pediatrician testified that the absence of signs of sexual abuse was not inconsistent with sexual abuse that occurred two years earlier because of the propensity to heal quickly. The defendant's defense was fabrication. His son testified that his father would never sexually abuse a child. The court ruled that this son became a character witness and allowed the government to ask about additional instances of alleged sexual misconduct. The defendant testified in his own behalf about a long-standing feud with his wife's family which was the reason for the fabrications. He denied abusing his younger half-sister. The government called the half-sister who said that, when defendant was a teenager and she was five or six years old, he began sexually molesting her. The jury found defendant guilty of all counts.

HELD: (1) Rule 414(a) permits evidence of other offenses of child molestation. Any argument that the rule is unconstitutional on its face is foreclosed absent en banc review. The Rule 414(a) evidence was not so prejudicial as to violate due process. Nor does the rule violate the equal protection guarantee based on the allegation that federal sex crime prosecutions are disproportionately targeted at Native Americans. Rule 414 is identical to Rule 413 except that 413 applies to the offense of sexual assault and 414 applies to the offense of child molestation. The court must determine a defendant is accused of such offense, the proffered evidence is evidence of the commission of another offense, and the proffered evidence is relevant. The court reviews the district court's legal interpretation of the rules de novo, but its decision to admit evidence is reviewed for abuse of discretion. In performing the balancing test, the court considers how clearly the prior act has been proved, how probative the evidence is, how seriously disputed the material fact is, and whether the government can avail itself of any less prejudicial evidence. The district court properly required the government to proffer its evidence outside the presence of the jury.

(2) The court reviews confrontation clause claims de novo. A witness' lack of recollection does not constitute inability to cross examine. The Sixth Amendment guarantees only an opportunity for effective cross examination.

(3) Rule 802 provides that hearsay is inadmissible except as provided by law. These statements did not constitute hearsay because the declarant testified and the defendant had the opportunity to cross examine. Also the statements fall within the exception under Rule 803(4) to the hearsay rule which applies to statements made for purposes of medical diagnosis or treatment.

(4) The court reviews admission of evidence at trial for abuse of discretion. Rule 608 allows a witness' credibility to be attacked or supported by evidence in the form of opinion or reputation, but only if the evidence refers to character for truthfulness or untruthfulness. Rule 608(b) allows inquiry on cross examination into specific instances of conduct but again, only if the conduct relates to truthfulness or untruthfulness. Questions regarding the defendant's alleged molestation of his daughter and half-sister are unrelated to either his or his son's veracity. The evidence, if admissible at all, had to come in under Rule 404(a)(1) and 405(a). The court may affirm if the evidence was admissible on any ground, or if erroneous admission of evidence was harmless error. Rule 404(a) provides that evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same is admissible. Rule 405 specifies that in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or opinion testimony. The son became a witness to his father's good character. Therefore the government was entitled to demonstrate that defendant's son was not fully informed as to his father's character. The defendant also put his own character at issue. Finally, any error in permitting the questioning was harmless.

(5) Because the defendant did not object to the limiting instruction for Rule 414(a) testimony, review is for plain error. The instruction was proper, tracking the language of the rule. Rule 414(a) displaces Rule 404(b)'s restriction on propensity evidence.

(6) The district court has discretion in determining whether an evidentiary hearing is necessary on allegations of juror misconduct. Defendant has shown no actual bias simply by the fact the juror was disturbed by the testimony in this case. The district court did not abuse its discretion in denying the motion for mistrial.

(7) The court reviews the denial of a continuance for abuse of discretion. The court granted the defendant a half-day continuance which is all that was warranted. He had obtained three prior continuances.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Error in State Law;

AEDPA - Standard for Relief, Evidentiary Hearing;

Ineffective Assistance of Counsel - Trial and Appeal;

Instructions - Lesser Included Offenses;

Admission of Evidence - Unadjudicated Crimes;

Prosecutorial Misconduct;

Mitigation - Present Evidence, Instructions;

Witnesses - Accomplice Testimony;

Aggravators - Continuing Threat, Prevent Lawful Arrest

Boyd v. Ward, 98-6309 (June 8, 1999)

(David B. Autry, Oklahoma City, Oklahoma)

This is a capital habeas case.

Boyd and others were in a van. They stopped at a convenience store. Boyd and Dunn discussed robbing the store. Boyd handed a gun to Dunn who used the weapon to rob the store. Then Dunn handed the gun back to Boyd. Then they went to a nearby gas station where Boyd used the pay phone. Oklahoma City police responded to the report of the armed robbery and noticed a green van matching the report. One officer approached the van. Another walked toward Boyd at the pay phone. One officer overheard the other ask Boyd to remove his hands from his pockets. This request was immediately followed by two shots and Officer Riggs died soon after from the gunshot wounds. A passing motorist saw the person who had been talking on the phone shoot Officer Riggs. All were arrested but Boyd fled on foot. A Colt .38 was found at the golf course. Boyd was arrested the next day at a home of his friend who later testified that Boyd told him he'd blacked out and the gun went off and he panicked. Boyd told police he was on the phone and saw a hitchhiker fire at Officer Riggs. Boyd was convicted. At the penalty phase, aggravating circumstances were murder committed to avoid arrest or prosecution, continuing threat, and victim was a peace officer. Boyd was sentenced to death. His sentence was affirmed on direct appeal and post conviction. The district court denied his habeas petition. He raises claims of ineffectiveness of trial counsel, appellate counsel, due process violation by introduction of misleading scientific evidence, and failure to instruct on lesser included offenses and other claims.

HELD: (1) The AEDPA sets forth a new standard for granting relief. The AEDPA applies to this case. The AEDPA increases the deference to be paid by federal courts to state court fact findings and legal interpretations. The Supreme Court has granted certiorari in a case involving interpretation of the AEDPA.

(2) To establish ineffective assistance of counsel petitioner must prove deficient performance and prejudice. To establish prejudice, Boyd must show that, but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. When appellate counsel is alleged to be ineffective, the court reviews with great deference counsel's decision to omit an issue on appeal and reverses only if counsel fails to raise a dead bang winner. As to the ineffectiveness of trial counsel, the state court's determinations on IAC were neither contrary to nor involved an unreasonable application of clearly established federal law, nor were they based on an unreasonable determination of the facts. Counsel's duty to investigate is strictly observed in capital cases. The court rejected the IAC claims for both trial and appellate counsel.

(3) The court affords a presumption of correctness to fact findings underlying the conclusion that the evidence was insufficient to justify lesser included offense instructions. Error in instructions, to the extent the claim rests on state law, is not a basis for habeas relief unless there is fundamental unfairness. Beck does not require an instruction on a lesser included non-capital offense, where the jury does not face an all or nothing choice, such as in Oklahoma where, despite a guilty verdict on a capital offense, the sentencer still has the option of imposing a sentence less than death.

(4) Boyd argues his counsel should have sought a lesser included offense instruction on second degree depraved mind murder and on first degree manslaughter. The Oklahoma Court of Criminal Appeals, subsequent to Boyd's conviction, held that second degree depraved mind murder is not a lesser included offense of first degree malice murder. But, at the time of trial, the courts had treated it as a lesser included offense. First degree manslaughter is a lesser included offense of first degree murder. The state court found the evidence did not support giving the instructions, and the conclusion is not an unreasonable determination of the facts in light of the evidence presented. Therefore counsel was not ineffective in failing to request the lesser included instructions.

(5) Failure to present mitigating evidence is not per se ineffective assistance of counsel, but it can constitute ineffectiveness if the failure was not due to a tactical decision.

(6) Admission of evidence of unadjudicated crimes in a sentencing proceeding does not violate due process.

(7) The court rejected the claim that counsel was ineffective in failing to adequately cross examine or impeach expert witnesses. The state court's determination that the testimony was neither false nor misleading is presumptively correct.

(8) A prosecutor's improper comment or argument will require reversal only where the remarks sufficiently affect the trial so as to make it fundamentally unfair.

(9) The Eighth Amendment does not require each mitigating circumstance to be set forth in a jury instruction so long as the jury is not prevented from considering any mitigating evidence.

(10) A defendant's right to due process and compulsory process includes the right to present witnesses in his defense. Counsel was able to elicit testimony that Boyd had never been charged with any crime resulting from unadjudicated offenses. Therefore the alleged suppression of testimony by a prosecuting attorney had no effect on the trial's outcome.

(11) A capital sentencer may not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record. Boyd was able to present this evidence to the jury.

(12) Oklahoma requires the testimony of an accomplice to be corroborated in at least one material fact. The federal Constitution does not prohibit convictions based primarily on accomplice testimony. An error of state law may rise to the level of a constitutional violation required for habeas relief if it resulted in a fundamentally unfair trial. The Oklahoma state court held no state law violation occurred.

(13) The continuing threat aggravator was not unconstitutional as applied.

(14) An aggravating circumstance may not describe circumstances that exist in every murder and also may not be unconstitutionally vague. The instruction on commission of the murder to prevent lawful arrest or prosecution meets the constitutional standard. Oklahoma law requires only that the predicate crime be separate and distinct from, rather than significantly contributing to, the murder.

(15) The instructions did not improperly imply that mitigating circumstances had to be found unanimously. Nor did the instructions compel the conclusion that the jury was empowered to ignore mitigating evidence.

(16) Under the AEDPA, the restriction on an evidentiary hearing does not apply because Boyd sought to develop the factual basis underlying his habeas petition but was prevented by the state court. He is entitled to an evidentiary hearing if his allegations, if true and if not contravened by the existing fact record, would entitle him to habeas relief. But Boyd failed to indicate what specific facts he would prove through a hearing.

Sentencing - Application of Guidelines, Tax Loss

United States v. Spencer, 98-5136 (June 8, 1999)

Spencer plead guilty to filing false and fraudulent tax returns. The primary dispute at sentencing revolved around the tax laws computations for purposes of §2T1.1.

HELD: (1) The court reviews de novo questions of law regarding application of the guidelines and reviews for clear error fact findings. Spencer identified no specific records from which a more accurate tax law determination could have been made. The court relied on the guidelines' presumptive tax rates. Although the government bears the burden of proving the amount of tax loss, neither the government nor the court had to calculate the tax loss with certainty.

(2) The guidelines authorize the court to avoid the presumptive tax rates if a more accurate determination of tax loss can be made. Section 2T1.1, Amendment 491, allows defendants to employ legitimate but unclaimed deductions in calculating tax loss, but this provision does not give taxpayers a second opportunity to claim deductions after having been convicted of tax fraud. Even assuming the proported compensation/bonuses would have been sufficiently reasonable to warrant a deduction, there is no competent evidence to support the defendant's characterization of the diverted funds. In addition no theft deduction under relevant statutes and regulations may be taken. The embezzled proceeds were never reported as income in the first place. Spencer attempts to absolve himself of responsibility for embezzlement by suggesting that his corporate victim could have written off the loss on his tax return.

Firearm Enhancement - Discharge and Brandishing, Physical Restraint, Double Counting

United States v. Rucker, 98-3252 (June 9, 1999)

HELD: (1) Rucker plead guilty to robbing a United States Post Office in violation of 18 U.S.C. § 2114. He was sentenced under §2B3.1. The guidelines provide for three degrees of enhancement for robbery conducted with a firearm. If the gun is discharged there is a seven level enhancement. If the gun is otherwise used, there is a six level enhancement. Rucker's sentence was enhanced by six levels. The court reviews fact findings for clear error and interpretation of the guidelines de novo. Rucker pointed the gun at the post office clerks and held them at gunpoint. The fact finding is not clearly erroneous. The instant case falls in the category between discharge and mere brandishing and a six level enhancement was not error.

(2) Rucker then claims the six point enhancement for otherwise using a firearm and the two point enhancement for physical restraint of victims stemming from a single act on his part is double counting. Impermissible double counting occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes. All three factors must be met for the use of separate enhancements to constitute impermissible double counting. Double counting is permissible unless the guidelines expressly provide otherwise, and if it accounts for more than one type of harm caused by the defendant's conduct, or where each enhancement serves a unique purpose. Here, the enhancements do not necessarily overlap, are not indistinct, and do not serve identical purposes.

Appellate Jurisdiction - Timely Notice of Appeal, Civil or Criminal, Excusable Neglect

United States v. Robbins, 98-8038 (June 14, 1999)

Defendant was charged with two counts of knowingly and forcibly impeding and interfering with a BLM employee in violation of 18 U.S.C. § 111. These charges arose out of his purchase of High Island Ranch in Hamilton Dome, Wyoming. Prior to the purchase, the BLM had an easement across the ranch that it failed to record so the easement was not enforceable. The defendant refused to grant an easement.

The defendant went to trial and was found not guilty. He then sought attorney fees and costs. The district court denied that request and he filed a notice of appeal 54 days later.

HELD: (1) A timely filing of a notice of appeal is mandatory. Otherwise the court lacks jurisdiction. In a civil case where the government is a party, the notice of appeal must be filed within 60 days. But in a criminal case, Rule 4(b) provides that the notice must be filed within 10 days after entry of the judgment or order.

(2) The Hyde Amendment, under which defendant sought attorney fees, refers to a criminal case where attorney's fees and expenses may be ordered when the court finds the United States acted in bad faith. The Equal Access to Justice Act sets out the procedures to be followed in civil cases. The Hyde Amendment references 28 U.S.C. § 2412, the Equal Access to Justice Act. But the procedures and limitations contained in § 2412 do not address the time for filing the notice of appeal.

(3) Rule 4(b) allows the district court to extend the time for filing a notice of appeal for 30 days. The court may not enlarge that time. Therefore the maximum time available to file a notice of appeal under Rule 4(b) is 40 days. The defendant filed his notice of appeal 54 days after the district court denied the motion for fees and costs.

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

AEDPA - Certificate of Appealability, Standard For Relief;

Confession - Request Attorney;

Witnesses - Confrontation, Recantation;

Felony Murder;

Instruction - Reasonable Doubt, Lack of Unanimity, Mitigation;

Ineffective Assistance of Counsel;

Mitigation - Unanimity, Instructions

Aggravator - Continuing Threat, Heinous and Cruel, Avoid Arrest;

Ineffective Assistance - Appellate, Deficient Performance and Prejudice

Lafevers v. Gibson, 98-6302 (June 16, 1999)

Lafevers appeals the denial of his federal habeas petition challenging his conviction and death sentence.

HELD: (1) There is nothing in § 2253(c), requiring a certificate of appealability, that suggests that it is inapplicable to capital habeas cases. In each instance, a district court must analyze a capital case as it would any other habeas petition or § 2255 motion.

(2) If a claim was not heard on the merits by the state courts and the federal district court made its own determination in the first instance, the circuit reviews conclusions of law de novo and findings of fact for clear error. But when reviewing the merits of a claim decided by the state courts, the circuit is bound to deny relief unless the state court decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

(3) A state court decision is contrary to or involves an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court, if the state court decision is in square conflict with Supreme Court precedent which is controlling on law and fact, or if its decision rests upon an objectively unreasonable application of Supreme Court precedent to new facts. The AEDPA increases the deference to be paid by federal courts to the state courts fact findings and legal determinations.

(4) Lafevers contends the state trial court should have suppressed statements he claims were obtained in violation of Miranda. The OCCA rejected the argument in a manner entirely consistent with federal law. If a suspect makes an ambiguous reference to an attorney such that the officer thinks the suspect might be invoking right to counsel, cessation of questioning is not necessary. Instead the suspect must unambiguously request counsel.

(5) Lafevers claims the state trial court violated the Sixth Amendment confrontation clause when it allowed the prosecution to read the first trial testimony of Hawkins into evidence during the second trial. Hawkins was an inmate who had shared a cell with Lafevers and was one of the principal prosecution witnesses in the first trial. Hawkins had testified that Lafevers had confessed to assaulting, raping and burning Ms. Hawley. After the first trial, Hawkins recanted that testimony. During the second trial he refused to testify unless he could consult with an attorney. The state court refused to appoint counsel. Hawkins refused to answer questions. The court stopped the proceedings and declared him an unavailable witness and ordered that his testimony from the first trial be read into evidence. The OCCA rejected the confrontation clause argument because Hawkins was subject to extensive cross examination in the first trial. The circuit held that the OCCA approach was not unreasonable. Hawkins was unavailable. This is a firmly rooted hearsay exception that only rises to a constitutional level if there is no showing of particular guarantees of trustworthiness.

(6) Lafevers claims his prosecution under the felony murder rule in his second trial, with kidnaping as the predicate felony, violated the double jeopardy clause. He had already been convicted of kidnaping in the first trial and that conviction had been affirmed on appeal. The OCCA held that Lafevers was correct that he should not have been charged on the alternative count of felony murder. Where two alternatives exist and only one is constitutional, a verdict cannot be upheld because the jury may have relied on an invalid alternative to reach the guilty verdict. But that is not the case here where the jury verdict form shows absolutely that it convicted Lafevers of malice murder and not felony murder. Lafevers also argues that his prosecution caused prejudice where he was subjected to multiple punishment. But this is subject to harmless error. Even if Lafevers had only been charged with malice murder on retrial, the evidence concerning the kidnaping would have come in under res gestae. The OCCA decision on harmless error was reasonable.

(7) Lafevers claims the state trial court violated his constitutional rights when it failed to sua sponte instruct on reasonable doubt. The OCCA approach is entirely consistent with federal law where the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.

(8) Lafevers claims trial counsel was ineffective during the penalty phase because he failed to present evidence of drug use and abuse. The OCCA properly analyzed this issue.

(9) Lafevers argues the state trial court erred when it declined to instruct jurors they could return a verdict of life instead of a death sentence, even if they found aggravating circumstances outweighed mitigating circumstances. The circuit's recent decision in Duvall v. Reynolds held that the instructions given did not prevent consideration of mitigating circumstances. The circuit was confident the instructions adequately apprised the jury of its option not to recommend the death sentence.

(10) Lafevers argues the state trial court committed constitutional error when it failed to instruct the jury that mitigating circumstances need not be found unanimously. In Duvall, this circuit held that a trial court need not expressly instruct a jury that unanimity is not required before consideration of a mitigating circumstance. The standard is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence. The instructions require unanimity only as to aggravating circumstances. None of the instructions involving mitigating imposed a unanimity requirement.

(11) Lafevers' argument that the continuing threat aggravator is unconstitutionally vague or overbroad has been rejected in a series of Tenth Circuit decisions, because the continuing threat aggravator is not applicable to every defendant.

(12) The claim that the especially heinous, atrocious and cruel aggravator is unconstitutionally vague was also rejected in the Duvall case discussing the Cartwright decision. Oklahoma law has consistently interpreted this aggravator to require torture and serious physical abuse as evidenced by proof of conscious physical suffering.

(13) The claim that his plea of nolo contendere was involuntary has been procedurally defaulted where it was not raised in his second trial or on direct appeal. The state court deemed it waived on an independent and adequate state ground. In the same way the claim that he was entitled to DNA testing was not raised in either of the two trials or two appeals.

(14) Lafevers presented claims heard in the first instance by the federal district court not barred by procedural default. He claimed his appellate counsel was ineffective for failing to ask for a DNA test after trial, and the federal district court improperly denied his discovery request for DNA testing. To establish ineffective assistance, petitioner must show deficient performance and prejudice. The district court found the DNA testing could not prove he was not at the crime scene or involved in the murder. Appellate counsel has no obligation to raise every non-frivolous issue whether requested by the defendant or not. Rule 6(a) of the Rules Governing Section 2254 Cases requires a habeas petitioner to show good cause before he is afforded the opportunity for discovery. Good cause is shown if the petitioner makes a specific allegation that shows reason to believe the petitioner may be able to demonstrate he is entitled to relief. Lafevers failed to show good cause for the discovery request.

(15) There was sufficient evidence to support the aggravating circumstance that the murder was committed to avoid arrest or prosecution. The appropriate standard of review is the rational fact finder standard.

(16) To prove prejudice for an ineffective assistance of counsel claim, petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. The proper focus is whether counsel's ineffectiveness rendered the proceedings fundamentally unfair or unreliable. Lafevers claims that at the time he made his nolo contendere plea, his attorney said the plea could never be used against him as an admission of guilt. The federal district court found no prejudice because the state had presented other evidence of the crimes connected to that plea.

(17) The federal district court found that counsel made a tactical decision in not presenting allegedly mitigating evidence from two inmates, where their testimony inculpated the defendant, and trial counsel had actually moved to exclude their testimony as unreliable.

(18) As to the claim that appellate counsel failed to communicate with Lafevers before filing the brief on direct appeal and failed to appeal the nolo contendere plea issue, these arguments are abandoned. The issues were referred to in a perfunctory argument without developed argumentation and are deemed waived.

Downward Departure - Unitary Discretion Standard, Disparity of Sentence, Family Responsibilities, Undue Parental Influence

United States v. Contreras, 97-2224 (June 14, 1999)

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

Contreras had participated in a drug conspiracy with her father. She was one of 22 people charged in a wide ranging drug conspiracy. At her original sentencing the district court departed downward and sentenced her to the statutory minimum mandatory 120 months to avoid an unwarranted disparity of sentences between Contreras and co-conspirator Denogean. Denogean had received a shorter sentence because she plead guilty rather than going to trial. On appeal, the circuit had reversed the downward departure. On resentencing, the district court again departed downward and sentenced Contreras to 120 months on the basis of parental influence and disparity of sentence.

HELD: (1) Since Koon, departures are reviewed under a unitary abuse of discretion standard. First, the court determines whether the factual circumstances are permissible departure factors. Second, the court must assess whether the departure factors remove the defendant from the heartland. Third, the court determines whether the record provides a sufficient factual basis for the departure. Finally, the court must examine the degree of departure to insure it is reasonable. The first inquiry, whether factual circumstances supporting departure are permissible factors, is a legal one to which the circuit owes no deference to the district court, while the next three inquiries are more factual and are due more deference. Substantial deference is given to the district court on the second factor, whether a particular defendant is within the heartland given all the facts of the case. Whether a factor is a permissible basis for departure is a question of law, and whether a factor in a particular instance makes a case atypical is a factual matter. Decisions to depart are reviewed under an abuse of discretion standard. One consideration in determining whether the district court abused its discretion is whether the factors are prohibited, discouraged, encouraged, or not discussed. If a district court relies on an impermissible factor, an inquiry the circuit makes de novo, the decision to depart is an abuse of discretion as a matter of law. If the district court relies on a discouraged factor, review of the decision must take into account the discouraged status, and the district court should depart only if the discouraged factor is present to an exceptional degree.

(2) As to sentencing disparity, it is an abuse of discretion to predicate a downward departure on this basis. That is the law of this case. In the same way, the district court abused its discretion based on the disparity between Contreras' sentence and Villalba's sentence. The purpose of the guidelines is to eliminate disparities and sentencing nationwide, not to eliminate disparity between co-defendants. Sentencing disparity between co-defendants is an impermissible departure factor when the defendants being compared either pled to or were convicted of different offenses or played significantly different roles in the commission of the same offense. Villalba was not similarly situated to Contreras. She plead guilty to a lesser charge and was in a different situation on sentencing.

(3) The district court also based its departure on parental influence of Aguirre, Contreras' father. The circuit disagreed that parental influence is different from other forms of coercion. Just because the guidelines will tolerate an upward departure based on a parent involving his child in criminal activity does not mean the guidelines will permit a downward departure for a child brought into a life of crime by his or her parent. Section 5K2.12 deals with coercion and duress as a basis for downward departure. Ordinarily coercion will warrant a departure when it involves threat of physical injury, or substantial damage to property. The Commission considered the relevance of economic hardship and determined that personal financial difficulties and economic pressures do not warrant a decrease in sentence. Contreras had argued that her father's influence had a financial dependence component and an emotional dependence component. The financial component is an impermissible factor. Coercion, in the absence of evidence of serious threats, is a discouraged basis for departure. The district court modified a discouraged basis for departure, coercion in the absence of serious threats, by another discouraged consideration, age, specifically youth, and one altogether prohibited by the guidelines, economic need. Age is not ordinarily relevant under §5H1.1, but the circuit acknowledged that age may be relevant in determining whether one has been coerced. Contreras began in her father's drug operation when she was only 17. No one can rely on the fact of coercion at a young age to continue indefinitely in criminal activity without legal consequences. The circuit's prior decision in Gallegos is instructive where an older, live-in boyfriend exerted influence over Gallegos.

(4) Recognizing the inappropriateness of grounding a departure in any of the factors discussed, Contreras argues that the court may depart based on a combination of factors in extremely rare cases. This is not one of those.

(5) Contreras also adds her family responsibilities which are discouraged bases for departure, and argues that in combination the family responsibilities can be a proper consideration. Family responsibilities justify a departure by informing a court's consideration of whether criminal activity was aberrational, an encouraged factor for departure. Contreras has no claim based on aberrant behavior. Because family ties and responsibilities are a discouraged factor, a district court may depart only if the factor is present to an exceptional degree. Therefore the court reversed. McKay dissented on the basis that parental influence is substantially different from the traditional notion of coercion and was not considered by the guidelines. And McKay thought that conduct justifying an upward departure can justify a downward departure for the victims of such conduct.

Appellate Jurisdiction - Timely Notice of Appeal, Pro Se Prisoners Mail Box Rule, Motion For Extension;

Restitution - Plain Error, Part of Plea

United States v. Smith, 98-6205 (June 28, 1999)

(Jenine Jensen, FPD, Denver, Colorado)

Smith plead guilty to using and carrying a handgun while committing a robbery of a credit union in violation of 18 U.S.C. § 924(c)(1). Restitution was ordered.

HELD: (1) This court cannot exercise jurisdiction absent a timely notice of appeal. Under Rule 4(b), a notice of appeal in a criminal case must be filed within 10 days after entry of judgment. The district court may only extend the time not to exceed 30 days from the expiration of the initial 10 day period.

(2) The pro se prisoner mailbox rule requires that the prisoner's declaration of timely filing state that first class postage has been prepaid.

(3) The district court granted Smith's pro se motion to file the notice of appeal out of time. But Smith did not file the notice within the total 40 day period from entry of judgment. However, the circuit deemed Smith's motion for out of time notice of appeal to be the functional equivalent of a notice of appeal. That motion was timely filed.

(4) The district court ordered Smith to pay restitution to the credit union. There was no objection. But imposition of an illegal restitution order may constitute plain error. However, Smith agreed to restitution as part of his plea agreement. Smith argued that restitution may only be ordered for losses caused by the offense of conviction, in this case, using and carrying a firearm, rather than the robbery itself. But the argument is foreclosed by the language of the plea agreement. In addition, use of the gun during the robbery was an integral part and cause of the loss to the credit union.

Motion to Vacate (28 U.S.C. § 2255) - AEDPA, Statute of Limitations, Grace Period, Pro Se Prisoners Mailbox Rule;

Ineffective Assistance of Counsel - Deficient Performance and Prejudice, Involuntary Plea; Crack Versus Powder Cocaine

United States v. Grey, 98-6043 (June 29, 1999)

Grey plead guilty in February 1995 to conspiring to possess with intent to distribute crack cocaine. He was sentenced in part on the enhancement applicable to drug crimes involving crack cocaine. He did not take a direct appeal. He mailed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, which he drafted pro se, in April 1997. The district court denied the motion as untimely in that it had to have been filed before April 24, 1997, but Grey's was not received by the clerk until April 30, 1997. The district court rejected the argument that the date of filing should be the day allegedly mailed, April 21, because of use of the prison's regular mail system.

HELD: (1) Because appellant's conviction was final in 1995, he had one year from April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act, in which to file his § 2255 motion. The circuit concluded that El Reno's legal mail system does not provide a log or record of receipt by prison authorities of all legal mail sent from the facility and thus does not meet the requirements of Houston and Leonard. Therefore the appellant should not be barred from receiving the benefit of the mailbox rule. Accordingly his motion was timely filed.

(2) As to the merits, appellant claims counsel was ineffective during the plea colloquy and at sentencing for failing to require the government to prove that his conspiracy involved the form of cocaine known as crack rather than cocaine powder. Appellant must show counsel's performance was deficient and that he was prejudiced by the deficiency. As to involuntariness of the plea, appellant must show that had counsel performed effectively, he would not have pleaded guilty and would have proceeded to trial. To prevail on the claim that counsel should have advised him of a potential defense, the appellant must show the defense likely would have prevailed at trial. Appellant's conviction was not predicated on whether the particular substance was crack or cocaine powder. This distinction is only relevant for sentencing purposes. Appellant does not claim he would not have plead guilty had he known of the difference sentences for crack and cocaine powder.

(3) At sentencing the government has the burden of proving the type of drug involved to enhance the sentence over that provided by the conviction. The indictments specified cocaine base or crack and appellant plead guilty to that. In the petition to enter guilty plea he admitted conspiracy to distribute crack cocaine base. These admissions relieve the government of any burden to show the drug involved was crack.

(4) In order to show prejudice for being sentenced for possession of crack, appellant must prove that the drugs were not crack. But appellant cannot meet the prejudice prong because he failed to claim the existence of evidence that the drug involved was not crack.

Computer Pornography - Jurisdictional Element of 18 U.S.C. § 2252, Insufficient Evidence, Production of Graphics File, Statutory Interpretation

United States v. Wilson, 98-1323 (June 29, 1999)

(Raymond P. Moore, FPD, Denver, Colorado)

Wilson appeals his conviction for possessing three or more matters containing visual depictions of minors engaged in sexually explicit conduct which were produced using material shipped or transported in interstate commerce in violation of 18 U.S.C. § 2252(a)(4)(B).

HELD: (1) The circuit reversed based on insufficient evidence to establish the jurisdictional element of the charged crime, i.e., that the visual depictions were produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce. This raises two issues: the proper interpretation of the term "materials" and sufficiency of the evidence.

(2) The court reviews interpretation of a federal criminal statute such as § 2252(a)(4)(B) de novo. The court begins with the language of the statute. The word "materials" must be given its ordinary or natural meaning. The court considers not only the meaning of the word, but also its placement and purpose in the statutory scheme. Therefore the court interpreted "materials" to encompass not only tangible matters that go into a visual depiction, but also tangible matters that are used to give being, form or shape to, but that do not necessarily become a part or ingredient of the visual depiction. Defendant's construction of the term "materials" ignores the context of the word as it appears in the statute. The court then considered whether the evidence was sufficient to demonstrate the jurisdictional nexus, that the visual depictions contained on the diskettes were produced using materials that traveled in interstate or foreign commerce. Sufficiency of the evidence is a question of law reviewed de novo. The court views the evidence and reasonable inferences to be drawn therefrom in the light most favorable to the government.

(3) Reversal for evidentiary insufficiency is tantamount to a declaration that the prosecution failed to prove its case beyond a reasonable doubt. The prosecution's strategy at trial for proving the jurisdictional element was extremely vague. The prosecution employed ever-shifting theories on this jurisdictional element. Although the evidence was uncontroverted that the diskettes at issue traveled in interstate commerce, there was alarming lack of proof that the diskettes were used to actually produce the graphics files. Therefore the evidence was insufficient on that theory. The ultimate theory that the prosecution offered during closing arguments was that the act of converting a computer graphics file stored on a diskette into a visual image on a computer monitor constitutes production of a visual depiction for purposes of the statute. However, the stipulated amended supererseding indictment narrowly charged the defendant with violating the statute by possessing three or more computer diskettes that contained visual depictions, i.e., computer graphics files. Under the statute, a computer graphics file is considered a visual depiction as it resides on a computer diskette in binary form. No act of viewing the file with software and a monitor is necessary. Thus the focal point of the jurisdictional element is whether the graphics files were produced using materials that traveled in interstate commerce. The statute required the circuit to focus on the graphics files as they reside or are contained on the diskettes and to determine what materials went into producing those files. It is irrelevant that the defendant may have viewed the graphics files, using a computer, using software and a monitor, because such viewing did not itself result in production of the graphics files. The circuit also found untenable the prosecution's theory that only the "matter" must have traveled in interstate commerce. The statute makes abundantly clear that either the visual depictions (graphics files) or material used to produce them must have traveled in interstate commerce.

(4) As to other possible theories, because the defendant was charged with possessing three or more diskettes, the fact that the jurisdictional element may have been satisfied with respect to one was not sufficient. The circuit also rejected the possibility that testimony regarding origination of the images standing alone would be sufficient to satisfy the jurisdictional element. Therefore the circuit reversed.

Change of Venue - Discretion, Plea Agreement;

Plea Agreement - Statements Made;

Most Analagous Guidelines - Guidelines Interpretation, Relevant Conduct, Murder or Involuntary Manslaughter;

Felony Murder - 18 U.S.C. § 1111, Elements;

Downward Departure;

Fine

United States v. Fortier, 98-6249 (June 30, 1999)

Fortier appeals his sentence after pleading guilty to conspiring to transport stolen firearms and other charges relating to the Oklahoma bombing.

HELD: (1) The claim regarding change in venue was waived in the plea agreement. The court will enforce a plea agreement unless the defendant alleges he agreed to its terms unknowingly or involuntarily. Alternatively, the district court's decision to deny the change of venue is reviewed under an abuse of discretion standard.

(2) The court reviews de novo whether the government has violated terms of a plea agreement. The language of §1B1.8 requires that the plea agreement specifically mention the court's ability to consider the defendant's disclosures in calculating the appropriate sentence range. The plea agreement specifically stated that statements Fortier made pursuant to the plea agreement may be used in sentencing.

(3) Fortier urges the district court erred in sentencing him under §2A1.1, the guideline for first degree murder. The district court correctly began with §2K2.1 because the offense of conviction involves transportation of stolen firearms. That section contains a cross reference where the defendant knew the firearm would be used in connection with another offense and death resulted. The court assumed Fortier used or possessed the stolen firearms in connection with commission of another offense but agreed that the district court erred in applying the first degree murder guideline. The court's selection of the most analogous offense guideline involves an application of guidelines to the facts. In reviewing this claim the court gives due deference to the district court. The deference due depends on the nature of the question presented. Interpretation of the guidelines is reviewed de novo, and the ultimate conclusion of which guideline most appropriately fits the facts is reviewed de novo. The district court correctly looked beyond the face of the indictment to consider relevant conduct. Such facts may be proved by a preponderance. The circuit only disagreed with the district court's selection of the most analogous guideline. Fortier urged involuntary manslaughter rather than first degree murder would be appropriate. In the Nichols appeal, the circuit stated that the district court may choose the first degree murder guideline if the evidence presented demonstrates malice aforethought and premeditation, or if the offense of conviction could serve as a predicate to the felony murder rule. Fortier did not harbor malice aforethought. Nor is there a prior design to commit murder. Not one of Fortier's offenses of conviction can serve as a predicate felony under the felony murder rule. Fortier's convictions do not come close to the predicate felonies described in 18 U.S.C. § 111(a).

(4) The fact that a downward departure may be appropriate when §2A1.1, first degree murder, is used, does not permit the incorrect use of §2A1.1. Discretionary departure is only applied when a court selects §2A1.1 by means of the felony murder rule.

(5) Neither §2A1.2, second degree murder, nor §2A1.5, conspiracy to commit murder, applies here. Both require malice aforethought. Voluntary manslaughter, §2A1.3, does not apply. By the process of elimination, that leaves involuntary manslaughter, §2A1.4. That also is not a perfect fit. Involuntary manslaughter is the unjustified and unexcused killing of a human being without malice in a commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner of a lawful act which might produce death. Involuntary manslaughter is limited to situations where the killing of a human being resulted from commission of an unlawful act not amounting to a felony. Lawful-act liability attaches only when one commits a lawful act in an unlawful manner or without due caution or circumspection. Fortier's offense conduct falls under neither. Transporting and selling stolen firearms amounts to an unlawful act constituting a felony. However, courts are not bound at sentencing by the terms of a criminal liability statute. The guidelines require the sentencing court to apply the most analogous offense guideline, not the most analogous offense statute. Furthermore, in finding the most analogous guideline, a perfect match is not required. Involuntary manslaughter is most analogous. It covers criminally negligent or reckless conduct.

(6) The cross reference provides that the most analogous offense guideline should be used if the resulting offense level is greater than that determined under §2K2.1. Section 2K2.1 provides an offense level of 22 which is greater than the involuntary manslaughter guidelines. All things considered, the district court should not have applied the first degree murder guideline.

(7) Appellate courts lack jurisdiction to review the extent of a downward departure. In addition, courts of appeals cannot review a sentencing court's refusal to depart from the guidelines, unless the refusal was because the court thought it lacked authority to depart. The circuit treats ambiguous statements by district judges as though the judge was aware of his legal authority to depart but chose instead not to depart.

(8) Claims regarding the amount of fine are mooted by the holding that the district court's calculation of the total offense level was error.