Instructions - Entrapment;

Entrapment - Insufficient Evidence;

Outrageous Conduct;

Plain Error Review;

Jury - Attorney-Juror Contact, Extraneous Information, Presumption of Prejudice, Hearing, Harmlessness

United States v. Scull, 02-2025 and

United States v. Bono, 02-2035 (March 11, 2003)

Bono and Scull were found guilty of various counts related to crack cocaine. They raise different issues arising out of the same set of facts. An undercover agent conducted five different drug transaction with Bono, Scull and Achon over a period of six weeks, totaling 85.2 grams of crack cocaine.

HELD: (1) Bono claims the district court erred in concluding the evidence was insufficient to support an entrapment defense, and refusing to instruct the jury on this defense. This issue is reviewed de novo. The entrapment defense protects an otherwise unpredisposed defendant from government coercion, raising the issue of whether the criminal intent originated with the defendant or the government. A defendant is entitled to an entrapment instruction when there is sufficient evidence from which a reasonable jury could find entrapment. The testimony most favorable to the defendant should be accepted. Bono did not present a defense, so the court examined the government's evidence. The court found the record did not support Bono's claim of entrapment. Evidence that a government agent solicited or requested the defendant to engage in criminal conduct, standing alone, is insufficient to constitute an inducement.

(2) Bono also claims that the government's continued investigation of him after the first sale of drugs to the undercover agent was to increase the charges against him and his sentence, and urges this is outrageous conduct. Bono did not raise this in the court below, so review is for plain error. Bono must show error that is plain and that affects substantial rights, and the court may exercise discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. The court found that the government's behavior was not outrageous. In United States v. Russell, the Supreme Court held that conduct of law enforcement agents might be so outrageous that due process would bar the government from obtaining a conviction. The question is whether, under the totality of the circumstances, the government's conduct is so shocking, outrageous and intolerable that it offends the universal sense of justice. The agent was able to learn more about the scope of the enterprise by maintaining an ongoing sales relationship with Bono, and to identify additional members in the conspiracy.

(3) Bono claims he was denied his Sixth Amendment right to a fair jury trial, and urges that a juror should be dismissed for cause when his views would substantially impair the performance of his duties as a juror. On the second morning of the trial, an alternate member of the jury reported to the court his belief that he had observed Bono's attorney speaking with another jury member. Bono claims that this observation biased the juror against Bono and his counsel. When the district court learned of the allegation, it separately questioned both jury members. The juror denied ever speaking to Bono's counsel. The court concluded the allegation was a case of mistaken identity. The court did not dismiss the juror who had reportedly seen this conduct, because he was a second alternate juror and was likely to be excused from deliberations. The court reinstructed the jury to avoid contact with the lawyers and parties, and to not discuss the evidence until the end of the case. Upon conclusion of the case and before deliberations, the juror who had reported the observation was excused. Even if the observation was correct, this is harmless error where the juror did not participate in deliberations. The district court acted within its discretion in deciding not to excuse him from the jury.

(4) Bono points out that the court had stated to the jury that there was a report of attorney/juror contact, and the court failed to later inform the jury as a whole that the report was inaccurate. He also claims the court did not inform the juror who was accused of talking with the attorney that the report was unfounded. When members of a jury are exposed to extraneous information, about a matter pending before the jury, a presumption of prejudice arises. This circuit has questioned the appropriate breadth of Remmer's presumption of prejudice rule. But in the absence of contrary Supreme Court authority, the court reviews Bono's claim under Remmer's rubric. When a trial court is informed of an extrinsic influence, the proper remedy is to hold a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. The presumption of prejudice weighs heavily in favor of the defendant, but is not insurmountable. The most common means of demonstrating harmlessness is existence of overwhelming evidence of guilt. Ordinarily, whether to hold a hearing is reviewed for abuse of discretion, but this is reviewed for plain error because Bono raised this claim for the first time on appeal. The court could not find plain error, and also noted there was overwhelming evidence against him.

(5) Bono argues the district court should have required the government to prove the fact of his prior convictions in order to enhance his sentence. However, Apprendi carves out an exception for prior convictions.

(6) Scull concedes the government presented sufficient evidence to support his conviction for distribution of crack cocaine, but claims the government failed to present sufficient evidence as to other charges. The court reviews the record de novo, in the light most favorable to the government to determine whether the evidence was constitutionally sufficient. The government provided sufficient evidence of participating in a drug conspiracy conviction. The elements of a drug conspiracy are an agreement to violate the law, knowledge of the essential objectives of a conspiracy, knowing and voluntary involvement, and interdependence among the alleged conspirators. A jury can infer an agreement constituting a conspiracy from the acts of the parties and other circumstantial evidence indicating concert of action with the accomplishment of a common purpose.

(7) To prove that Scull maintained a place for manufacturing and distributing cocaine, the prosecution had to prove that he knowingly opened or maintained a place for that purpose. The evidence was sufficient.

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

Statute of Limitations - Time for Filing Cert Petition Expired, Court Uses Anniversary Method, Not Calendar Method, Filed When Received

United States v. Hurst, 01-7057 (March 21, 2003)

Hurst filed a motion to vacate sentence pursuant to § 2255, challenging his guilty plea. The district court dismissed the action because it was filed one day too late to comply with the one-year statute of limitations. The circuit concluded the motion was timely and remanded for further proceedings.

Hurst had entered a guilty plea. His criminal history showed an outstanding California probation warrant, issued for alleged failure to appear to serve two days in jail. He tried to show he had served the time in Oklahoma, but the jail officials had failed to notify California. The federal court ruled that his proof was insufficient, and added 2 escape status points to his criminal history calculation. This resulted in an additional 14 months on his sentence. The judgment and sentence were upheld on direct appeal. He filed a petition for rehearing, which was denied on February 16, 1999. He did not petition the United States Supreme Court. Thereafter, he demonstrated to the California court's satisfaction that he had served his 2-day sentence in Oklahoma. On May 9, 2000, that court issued an order deeming the sentence satisfied as of September 8, 1995. Hurst then filed his § 2255 motion, claiming ineffective assistance of counsel, and requesting modification of sentence based on deduction of the escape status points. The district court received the motion on May 17, but the motion was not officially filed until May 18. Using the date of receipt, the district court held that the applicable statute of limitations began running on May 17, 1999, 90 days after denial of the petition for rehearing, and ended on May 16, 2000. The district court dismissed the case as untimely.

HELD: (1) The court reviews de novo the district court's determination that a litigant's claims are barred by the statute of limitations. Section 2255 establishes a one-year limitations period. If a prisoner does not file a petition for writ of certiorari, the one-year limitation period begins to run when the time for filing a certiorari petition expires. A petition for writ of certiorari must be filed within 90 days after denial of a timely petition for rehearing. The issue is whether the AEDPA period ends on the one-year anniversary of the final judgment or the date before the anniversary, that is, the anniversary method or the calendar method.

(2) The Supreme Court rules make it plain that the time for filing a petition for certiorari does not begin to run from the issuance date of the mandate.

(3) The general rule for computing time limitations in federal courts is Rule 6(a), F.R.Civ.P. In computing any period of time, the day of the act from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. Under this rule, when a statute of limitations is measured in years, the last day for instituting the action is the anniversary date of the relevant act. Other circuits have concluded Rule 6(a) applies to calculation of AEDPA limitations periods. Therefore, a motion presented to the court on the anniversary date of a triggering event is within the one-year period of limitations. To the extent that Simonds and other cases are inconsistent with this, the panel circulated this to the en banc court which unanimously agreed that such decisions should be overruled. The circuit held that the AEDPA should be computed under the anniversary method rather than calendar year.

(4) In addition, the cases uniformly hold that a document is deemed filed when actually received and not when some other processing event occurs.

(5) The circuit denied the petition for rehearing on February 16, 1999. Hurst had 90 days, or until May 17, 1999 to file a petition for certiorari with the United States Supreme Court. When he did not seek Supreme Court review, the one-year period of limitations commenced on the day after expiration of the time for petitioning for certiorari or May 18, 1999. Under the anniversary rule, the one- year period ended on May 18, 2000, even though the year 2000 was a leap year. Mr. Hurst's § 2255 motion was submitted to the clerk on May 17, and therefore was filed within the AEDPA statute of limitations - with one day to spare.

Firearm Enhancement - In Connection with Another Felony, Sufficient Evidence, Felony Menacing;

Official Victim (§3A1.2) - Motivated by Official Status, Determined Based on Offense and Not Relevant Conduct

United States v. Blackwell, 02-1062 (March 24, 2003)

(Robert W. Pepin, FPD, Denver, Colorado)

Blackwell was convicted after jury trial of felon in possession of a firearm. The PSR recommended a four-level enhancement for possessing a gun in connection with a state offense of felony menacing and a three-level official victim enhancement.

HELD: (1) In order to support an enhancement under §2K2.1(b)(5), a preponderance of the evidence must show that the defendant possessed a firearm in connection with another felony. The evidence was sufficient for the district court to determine that Blackwell pointed a laser-sighted weapon at the officers. Under Colorado law, felony menacing is a general intent crime, and it is enough that the defendant's conduct was sufficient to place someone in fear of imminent serious bodily injury.

(2) The district court also added a three-point enhancement under §3A1.2(a), which covers official victims, and applies when the victim was a government officer or employee and the offense of conviction was motivated by such status. The district court considered not only the specific offense, but also other relevant conduct. Blackwell, on appeal, argues the guideline is inapplicable because the offense of conviction is possession of a weapon by a felon, which is not a charge encompassing menacing a police officer. The circuit agreed that §3A1.2(a) applies only to the offense of conviction, and not to that offense accompanied by relevant conduct. The offense of conviction in this case was a felon in possession of a firearm. Nothing about the status of the officers in any way motivated commission of that offense. Nor were the officers victims of the offense. Therefore, the circuit reversed and remanded for resentencing.

Mootness;

Supervised Release - Unexpired Term Sufficient to Overcome Claim of Mootness;

Guideline Interpretation - Amendment, Commission's Intent;

Alien - Aggravated Felony

United States v. Castro-Rocha, 02-1106 (March 25, 2003)

(Warren R. Williamson, and Madeline S. Cohen, FPD, Denver, Colorado)

Castro-Rocha pleaded guilty to illegally re-entering the United States after deportation in violation of 8 U.S.C. § 1326. The district court sentenced him to 15 months imprisonment, after increasing his offense level by 8 levels pursuant to §2L1.2(b)(1)(C). Over defense objection, the district court concluded that Castro-Rocha was subject to the 2001 version of the guidelines because his prior Texas state drug conviction constituted an aggravated felony.

Castro-Rocha had been convicted in Texas of possession of a controlled substance, and sentenced to a one-year term of imprisonment which was suspended. The conviction for simple possession is a felony under Texas law. Castro-Rocha was deported to Mexico in July 2001. In October he was found in Colorado without the express consent of the Attorney General. He was charged with illegal reentry after prior deportation. The PSR increased his offense level by 8 levels, considering the Texas simple possession conviction to be an aggravated felony.

HELD: (1) If Castro-Rocha were to prevail on the merits, his offense level would decrease, as would his sentencing range, and the district court could choose to impose the term of imprisonment of less than one year and a lesser term of supervised release or no term of supervised release. Thus, the district court could grant him effective relief by either shortening or eliminating his term of supervised release. A defendant's unexpired term of supervised release, which could be reduced by a favorable appellate decision, is sufficient to defeat a claim of mootness.

(2) This court has held that a state felony conviction for simple possession constitutes an aggravated felony for purposes of the pre-2001 version of §2L1.2. Amendments to §2L1.2, adopted on November 1, 2001, require a re-examination of that question. The district court concluded it was not necessary to adopt the definition of aggravated felony advocated by Castro-Rocha in order to give effect to the November 1, 2001 amendment. The question is whether the district court erred in concluding that a state felony conviction for simple possession of a controlled substance is an aggravated felony for purposes of the 2001 version. This is subject to de novo review. Prior to the amendment, the application notes incorporate the definition of aggravated felony from 8 U.S.C. § 1101(a)(43). In turn, § 1101(a)(43) incorporates a drug trafficking crime as defined in 18 U.S.C. § 924(c). Under the interpretation of aggravated felony in the Tenth Circuit's decision in Cabrera-Sosa, Castro-Rocha is subject to the 8 level increase. He urges that the amendment altered the definition of aggravated felony to exclude a state's simple possession felony convictions. The new version sets out a graduated scale of sentencing enhancements, based on the type of crime that preceded the previous deportation. The application notes were also significantly altered and contain the new definition of "drug trafficking offense" which does not include simple possession. But the note continues to define aggravated felony by reference to 8 U.S.C. § 1101(a)(43). Castro-Rocha claims the Sentencing Commission intended to treat simple possession convictions as ordinary felonies. The Ninth Circuit recently rejected these arguments, and the Tenth Circuit adopted the analysis. The circuit held that the Sentencing Commission intended that state felony convictions for simple possession qualify for the 8-level enhancement under §2L1.2(b)(1)(C). Therefore the rule of lenity does not apply. The fact that the Sentencing Commission has proposed another amendment that would remove simple possession offenses from the definition of aggravated felony does not matter. The Supreme Court has cautioned against the use of legislative history in understanding an earlier-enacted statute.

Motion to Vacate Sentence (28 U.S.C. 2255);

Procedural Default - Cause and Prejudice, Ineffective Assistance of Counsel as Cause, Attorney Error Not Amounting to Constitutional Ineffectiveness;

Guilty Plea - Waives Non-Jurisdictional Defects;

Indictment - Defect in Indictment Is Not Jurisdictional;

Grand Jury - Fourth Amendment Exclusionary Rule Does Not Apply;

Ineffective Assistance of Counsel - Standard In Guilty Plea Context

United States v. Salazar, 02-8048 (March 26, 2003)

Salazar appeals the dismissal of his § 2255 action. The district court granted a COA. The Tenth Circuit has jurisdiction. The district court's legal rulings are reviewed de novo and findings of fact for clear error.

HELD: (1) The failure to raise the suppression issue requires that Salazar demonstrate cause for his procedural default and actual prejudice. Cause must be some objective factor external to the defense. Cause may be shown by ineffective assistance of trial or appellate counsel. Salazar urges his claim is not barred because his counsel never informed him of the defective Wyoming wiretap statute. The defect came to light months after he had been sentenced. Attorney error, short of ineffective assistance of counsel, does not constitute cause. The claim is barred.

(2) In addition, a voluntary and unconditional guilty plea waives all non-jurisdictional defects.

(3) Defects in an indictment are not jurisdictional.

(4) The Fourth Amendment exclusionary rule does not apply to grand jury proceedings. Neither 18 U.S.C. § 6002, concerning restrictions on immunized testimony or information, nor § 2515 as to federal wiretaps, imposes a jurisdictional bar on prosecutions.

(5) A claim of ineffective assistance of counsel is reviewed de novo. Salazar must prove deficient performance and prejudice. In the guilty plea context, he must establish there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. The circuit resolved the claim based on absence of deficient performance. It is difficult to see how counsel was ineffective by failing to challenge the warrant, when all the attorneys in the Wyoming Attorney General's Office also failed to notice the expiration of the statute.

Clemency Proceedings - Appointment of Counsel and Federal Funds for State Prisoners Under 21 U.S.C. 848(q);

Appointment of Counsel

Hain v. Mullin, 03-5038 (March 26, 2003)

Hain, an Oklahoma state prisoner convicted of capital murder and sentenced to death, appeals the district court's denial of his request for funding under 21 U.S.C. § 848(q)(8). The question is whether that statute entitles state prisoners to federally appointed and funded counsel to represent them in state clemency proceedings. The circuit held that § 848(q)(8) does not authorize funding under these circumstances.

HELD: (1) Section 848(q)(8) creates a right to federally appointed and funded counsel for financially unable state capital defendants pursuing federal habeas relief. The statute further states that the attorneys "shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant." The interpretation of a federal statute is reviewed under a de novo standard of review. Words of a statute must be read in context and with a view to their place in the overall statutory scheme. The Eighth Circuit held that § 848(q)(8) evidences a Congressional intent to insure indigent that state prisoners receive reasonably necessary clemency services from appointed counsel. But the Fifth and Eleventh Circuits concluded otherwise, because § 848 deals with defendants who engage in continuing criminal enterprises in violation of federal drug laws. Section 848 authorizes the death penalty for certain of these defendants. Also included within § 848 are provisions authorizing appointment and funding for counsel for financially unable capital defendants, and also authorizes appointment of counsel in a post-conviction proceeding under § 2254. State capital defendants seeking federal habeas relief are entitled to federally funded and appointed counsel to represent them. See § 848(q)(4)(B). But the circuit said that the language in that subsection relates more directly to federal cases than to habeas cases seeking relief from state court sentences. Quoting the King case, the circuit concluded that the word "federal" is an implied modifier, and stated that a broader construction would defy common sense and lead to the absurd result, in the circuit's view, that a state capital defendant would be entitled to federally appointed and funded counsel in state clemency proceedings. Lucero filed a dissent.