Motion to Vacate (28 U.S.C. § 2255);

Jurisdiction - Subject Matter Jurisdiction, Not Conferred by Stipulation;

Indian Major Crimes Act - Public Law Removal of Federal Jurisdiction;

Judicial Notice - Official Government Map

United States v. Burch, 97-1442 (March 4, 1999)

The district court denied Burch's motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. Burch, a member of the Southern Ute Indian Tribe, was convicted of manslaughter in connection with the death of an infant occurring in the Meadowbrook Trailer Park, Ignacio, Colorado. Ignacio is located entirely within the boundaries of the Southern Ute Indian Reservation.

Burch filed a motion to vacate sentence alleging the United States lacked subject matter jurisdiction over the crime. The government relied on Burch's stipulation that the crime occurred within the boundaries of the Southern Ute Indian Reservation. In reply, Burch clarified that his challenge rested upon public law 98-290 § 5, which granted the State of Colorado criminal and civil jurisdiction within the boundaries of the town of Ignacio, Colorado. The district court denied the § 2255 motion.

HELD: (1) Challenges to a district court's subject matter jurisdiction may be raised at any time. Subject matter jurisdiction may not be conferred by stipulation. Criminal jurisdiction over offenses committed in Indian country is governed by a complex patchwork of federal, state and tribal law. Historically, criminal offenses by or against Indians are subject to federal or tribal laws, except where Congress has provided that state laws apply. The Indian Major Crimes Act established exclusive federal jurisdiction over enumerated felonies committed by any Indian against another Indian within Indian country. Manslaughter is one of those enumerated offenses. In 1953, Congress passed a law conferring upon certain states criminal jurisdiction over offenses committed by or against Indians in identified portions of Indian country. Colorado was not one of the states originally identified in the public law. But in May 1984 Congress enacted public law 98-290, which represented a negotiated agreement between the Southern Ute Indian Tribe and the

State of Colorado. The question is whether this public law removes United States jurisdiction over Indian Major Crimes Act offenses in the town of Ignacio. The circuit concluded Congress intended to bestow exclusive jurisdiction on Colorado over such offenses.

(2) Judicial notice may be taken at any time, including on appeal. A fact may be judicially noticed if it is not subject to reasonable dispute because it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Whether an offense occurred within particular geographical boundaries is an appropriate subject for judicial notice. Official government maps are generally an acceptable source. A photo copy of a portion of a map, however, as provided in this appeal, is not a source whose accuracy can not reasonably be questioned. Therefore to determine whether the United States had jurisdiction to charge and try the defendant, the case must be remanded for further proceedings.

Child Pornography (18 U.S.C. § 2252) - Elements, Instructions, Sufficient Evidence;

Instructions - Review Standard, Elements of Child Pornography, Knowing Receipt, Computer E-mails, Harmless Error;

Supervised Release - Conditions

United States v. Fabiano, 98-1048 (March 5, 1999)

(Jill M. Wichlens, FPD, Denver, Colorado)

Fabiano appeals his conviction for knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). He was charged in a 15 count indictment with transporting, receiving and possessing child pornography. A jury convicted him of two counts of knowingly receiving visual depictions of child pornography, and acquitted him on the remaining 13 counts.

HELD: (1) The court reviews a jury instruction de novo when an objection is made at trial, and for plain error when no objection was made. Although the defendant offered an instruction on the elements of the offense, which the district court rejected, defendant did not specifically object to the elements instruction given by the court. Therefore review is for plain error. In reviewing jury instructions for error, the court views them as a whole to determine whether the jury may have been misled. The district court instructed the jury on the elements of § 2252(a)(2), on knowingly and knowingly received. The elements instruction comports with the requirements set forth by the Supreme Court. The government must not only prove the defendant knowingly received a visual depiction, but also that the defendant knew the material was sexually explicit and that performers were minors. The instructions, viewed together, properly instructed the jury as to the defendant had to know the material he received involved minors engaged in sexually explicit conduct. The instructions stated that knowing receipt means more than simply having e-mail sent to a computer, and if Fabiano did not request the images, the jury could find he did not knowingly receive them. The circuit held these instructions did not permit the jury to find the defendant guilty if the evidence showed he merely acquired the e-mails without knowledge of their content.

(2) The circuit rejected the defendant's argument that X-citement Video requires an additional statement regarding when the defendant acquired the requisite knowledge. Because the government admitted at oral argument that an element of the offense instruction which explicitly addressed when knowledge must be acquired would have been preferable, the court assumed the instruction was error but declined to grant relief because the defendant has not demonstrated he was prejudiced by the error.

(3) Sufficiency of the evidence is a question of law reviewed de novo. The court would not reverse a conviction based upon insufficient evidence unless no rational trier of fact could have reached the disputed verdict. There was ample evidence to support the jury's verdict that the defendant was guilty of knowingly receiving visual depictions of minors engaged in sexually explicit conduct.

(4) Defendant's failure to object, to a condition of supervised release that he comply with registration requirements of the Colorado Sex Offender Registration statute, means review is for plain error. District courts have broad discretion to fashion conditions of supervised release. Such conditions must be reasonably related to the nature and circumstances of the offense. Even if defendant's conduct does not fall within the statutory definition, the district court had discretion to order such registration.

Speedy Trial Act - Review Standard, Purpose, Requirements, Waiver, Excludable Time, Sua Sponte Issues;

Speedy Trial (Sixth Amendment) - Considerations, Delay Presumptively Prejudicial;

Motion to Suppress - Review Standard, Search of Passenger Compartment of Car;

Confession - Voluntariness, Totality of Circumstances;

Admission of Evidence - Discretion Standard, Drug Conviction (Rules 609 and 404);

Re-Entry After Deportation (§2L1.2) - 16 Point Increase, Aggravated Felony, State Felony Conviction

United States v. Lugo, 98-4020 (March 11, 1999)

Lugo was convicted of possession of cocaine with intent to distribute and reentry of a deported alien.

HELD: (1) The court reviews de novo compliance with the Speedy Trial Act and alleged constitutional violation of the right to speedy trial. The circuit accepts the district court's fact findings unless clearly erroneous. The Speedy Trial Act is designed to protect a defendant's constitutional right to speedy trial, and serve the public interest in adjudicating criminal proceedings promptly. The Act requires that a criminal defendant's trial commence within 70 days of the filing of the indictment, or from the date the defendant first appears before a judicial officer of the court, whichever is later. Certain periods of delay are excluded. Failure to move for dismissal prior to trial constitutes waiver of the right to dismissal. Neither the district nor magistrate judge ever indicated that any discussion about the Speedy Trial Act issue would be deemed a motion to dismiss. Therefore Lugo waived the speedy trial argument. In any event, his arguments fail because his trial took place within the time required by the Act. Pending motions constitute excludable delay. Once the court has all materials necessary to resolve the motions, it has 30 days to decide, which 30 days are also excludable.

(2) Some of the delay was attributable to the district court's sua sponte raising of issues for further briefing. Where parties have not raised an issue, the court ordinarily should not address that issue sua sponte. However, a court should raise a defense sua sponte when that defense implicates subject matter jurisdiction or an important non-jurisdictional concern that transcends the interests of the parties. The issue of whether Lugo had standing to object addresses substantial non-jurisdictional issues relevant to the proper disposition of Lugo's motion to suppress.

(3) In determining whether the defendant has been deprived of his constitutional right to speedy trial, the court considers the length of delay, reason for delay, defendant's assertion of his right to speedy trial and prejudice to the defendant. A threshold factor is length of delay. The court needs to inquire into other factors only if the period of delay is presumptive prejudicial. Delay of approximately 7 months is not presumptively prejudicial and the Barker analysis is not necessary.

(4) In reviewing a denial of a motion to suppress, the court views the evidence in the light most favorable to the government, and accepts district court's fact findings unless clearly erroneous. The ultimate determination of reasonableness is a question of law reviewed de novo. Under Belton, police may conduct a contemporaneous warrantless search of a vehicle's passenger compartment incident to a lawful arrest. A warrantless search incident to arrest is valid so long as there existed a legitimate basis for the arrest before the search, and the arrest took place shortly after the search.

(5) The voluntariness of a confession is a question of law reviewed de novo. The circuit accepts the district court's fact findings unless clearly erroneous. The court bases a determination of voluntariness on the totality of the circumstances, including defendant's age, intelligence and education, length of detention and interrogation, length and nature of questioning, whether the defendant was advised of his constitutional rights, and whether the defendant was subjected to or threatened with any physical punishment. Lugo appeared to understand the trooper's questions, because he gave appropriate answers to the questions asked in English. Lugo was not unusually susceptible to coercion based on age, intelligence, and education. Lugo was not subjected to an unreasonably long detention and interrogation. He was advised of his constitutional rights, though not in Spanish. The fact that the waiver of Miranda rights was oral and not written does not render it invalid.

(6) The court reviews evidentiary challenges for abuse of discretion. While testifying at trial, Lugo denied knowledge of drugs in the vehicle or that he used drugs. The district court ruled that evidence of Lugo's 1995 drug conviction was admissible under Rule 609, and probative of intent under Rule 404(b). The court gave the jury a limiting instruction. The district court's admission of the prior conviction was proper under Rule 609. The court did not need to address the alternate basis for admission under Rule 404(b).

(7) Lugo's sentence was enhanced by a 16 point increase in offense level under §2L1.2(b)(1)(A). The day before trial the government filed a notice of enhancement under 21 U.S.C. § 851(a)(1). This was timely under the statute. Nothing else about the government's notice was deficient or misleading. The record shows Lugo pled guilty to a third degree felony, attempted possession of a controlled substance with intent to distribute, under Utah law. 8 U.S.C. § 1101(a)(43)(B) defines an "aggravated felony" as "illicit trafficking in a controlled substance including a drug trafficking crime." The crime to which Lugo pled indicates intent on its face, and the record shows the offense involved knowing and intentionally attempting to distribute cocaine. A defendant's state court conviction for felony possession of a controlled substance constitutes an aggravated felony within the meaning of §1101(a)(43).

Motion to Vacate (28 U.S.C. § 2255);

Right to Hearing - Right to Appointment of Counsel;

Use and Carry Firearm - Bailey, Bowsley, Actual Innocence;

Guideline Sentence - D-Methamphetamine, Ineffective Assistance of Counsel, No Applicable Guideline

United States v. Leopard, 98-7013 (March 16, 1999)

The defendant seeks to appeal an order denying his § 2255 motion. The circuit granted a certificate of appealibility, vacated the order of the district court and remanded with directions to appoint counsel and conduct further proceedings. The § 2255 motion claimed error in instruction on "use" of a firearm and unsubstantiated sentencing for D-methamphetamine, and asserted ineffective assistance of counsel and an intervening change in law to excuse the omission of these issues on direct appeal. He moved to amend the motion to include sentencing objections with respect to the listed chemical and firearm possession counts. The court denied relief on the two initial grounds and dismissed the case, without any reference to pending motions to amend and for appointment of counsel. The district court ordered an evidentiary hearing.

HELD: (1) As a general matter, simply by ordering a hearing, the district court brought into play the mandate of 28 U.S.C. § 2255, Rule 8(c), that states that if an evidentiary hearing is required, the judge shall appoint counsel.

(2) The district court denied the claim on "use" of a firearm, holding the jury would have necessarily found the elements for the "carry" prong of § 924(c). While this deductive analysis was appropriate under prior Tenth Circuit law, it has been supplanted by the Supreme Court Bousley decision that holds that Bailey claims raised on collateral relief require actual innocence of the § 924(c) charge before relief may be granted. Now, Bailey claims are foreclosed if the evidence was legally sufficient to convict for carry or use. Bousley made it more difficult to obtain collateral relief on the basis of Bailey instructional error. Under Bousley, the evidentiary basis for the findings, which this circuit's prior approach took as given is now the object of the inquiry, to be assessed for legal sufficiency. Because the court was remanding for appointment of counsel and further proceedings on the Glover issue, pertaining to D-methamphetamine, the court thought it best to include the Bailey-Bousley claim in the remand, and let counsel develop the appropriate evidentiary argument before the district court.

(3) The defendant raised another serious claim in his proposed amendment to the § 2255 motion. The government raised procedural bar concerns. But if the claim is the evident winner it appears to be, such procedural bar concerns could well be obviated by the defendant's allegation of ineffective assistance of counsel. In 1990, when the defendant was sentenced for possession of a listed chemical with intent to manufacture a controlled substance, the guideline most readily applicable to drug crimes, §2D1.1, failed to cover the described offense, and there was no sufficiently analogous guideline to apply in accordance with §2X5.1. In Voss, the circuit had vacated a listed chemical sentence, calculated like a controlled substance sentence under §2D1.1, and remanded for resentencing under 18 U.S.C. § 3553, which governs sentencing in the absence of an applicable guideline. Defendant here asserted the same issue.

Discovery (Rule 16) - Discretion Standard, Sanctions;

Prosecutorial Misconduct - Closing Argument, Comment on Defendant's Failure to Testify;

Cumulative Error

United States v. Hernandez-Muniz, 97-2303 (March 16, 1999)

(Jenine Jensen, FPD, Denver, Colorado)

Hernandez was convicted of possession with intent to distribute 500 grams or more of cocaine.

HELD: (1) The government failed to disclose Hernandez' statement to the agent in violation of Rule 16. Discovery rulings rest within the sound discretion of the district court and are reviewed for abuse of discretion. Even if the district court erred in admitting the statement at trial, review is for harmless error under the Kotteakos standard. Because the agent testified at a preliminary hearing and disclosed the substance of defendant's statement to him, under these circumstances, the government met its disclosure obligations under Rule 16. The government did not suppress the statement under the Brady v. Maryland analysis. The due process clause requires disclosure of exculpatory information, but does not require such disclosure in a specific form or manner.

(2) Failure to object to prosecutorial misconduct in closing argument calls for plain error review only. In closing, government counsel said Hernandez was the most important witness in his case. Prosecutorial comment on a defendant's failure to testify violates the Fifth Amendment. In context, the prosecutor's isolated comment did not constitute a constitutional violation. Instead, the prosecutor was trying to explain the significance of the defendant's statements admitted through testimony of others. This court has characterized as unnecessary and unwarranted a prosecutor's closing argument in which he calls the defendant a liar. But this does not constitute per se prosecutorial misconduct. In addition, prosecutors have considerable latitude to respond to an argument by opposing counsel. Even if the comments were improper, they were not so egregious to constitute a miscarriage of justice.

(3) The court reviews allegations of cumulative error under the harmless error standard. Because the court found no error in the case, Hernandez could show no basis for cumulative error.

Motion to Suppress - Review Standard, Federal Law Governs in Federal Prosecutions;

Search Warrant - Probable Cause, Totality of Circumstances, Particularity, Plain View and Inadvertence, Scope of Warrant, Business Warrant

United States v. Dinh Le, 98-5088 (March 31, 1999)

Dinh Le plead guilty to possessing of firearms while being a user of unlawful controlled substances in violation of 18 U.S.C. § 922(g)(3), possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d), and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). He appeals the denial of his motion to suppress evidence.

HELD: (1) When reviewing a district court's denial of a motion to suppress, the court accepts fact findings unless clearly erroneous, and views the evidence in the light most favorable to the government. The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewed de novo.

(2) Oklahoma's state law requirements for adequacy of a warrant are more exacting than federal standards. Oklahoma courts require that search warrant affidavits state clearly the specific dates on which contraband or evidence of a crime was observed on the premises to be searched. Federal courts apply a totality of the circumstances analysis. In federal prosecutions, the test of reasonableness under the Fourth Amendment is governed by federal law, even though police actions are those of state police officers. The fact that the search may have violated state law is irrelevant.

(3) When reviewing a magistrate's finding of probable cause for issuance of a search warrant, the court considers the totality of the circumstances and determines whether the affidavit established the probability that evidence of criminal activity would be located in the desired search area. A magistrate's determination that probable cause exists is entitled to great deference. The information in the affidavit, taken as a whole, supports the magistrate's finding that probable cause existed to issue the warrant.

(4) The Fourth Amendment requires that search warrants particularly describe the place to be searched and persons or things to be seized. Under Coolidge, an officer may seize an item without a warrant when that item is in plain view and the officers are lawfully in a position to observe the item, the discovery of the item is inadvertent, and it is immediately apparent to the searching officers that the item is evidence of a crime or contraband. The Fourth Amendment requires the police to obtain a warrant for items that they know about and intend to seize. The inadvertence requirement to the plain view exception was announced by only a plurality of the Supreme Court in Coolidge. In 1990, in Horton v. California, the Supreme Court held inadvertence is not a necessary condition of legitimate plain view seizures.

(5) Where executing officers exceed the scope of a warrant, only improperly seized evidence must be suppressed, unless there is a flagrant disregard for the terms of the warrant. In rare cases, the circuit has applied the unusual remedy of blanket suppression, as in United States v. Medlinn and United States v. Foster.

(6) A federal warrant was issued later. A warrant meets the Fourth Amendment's particularity requirement when it enables the searcher to reasonably ascertain and identify the things authorized to be seized. The warrant, authorizing a search for any explosives, explosive materials and parts, was sufficiently particular.

(7) The scope of the search in executing the federal residence warrant was not of the type condemned in Medlin and Foster. In any event, Dinh Lee was never prosecuted for possessing any of the eight items allegedly illegally seized.

(8) A federal business warrant was sought and obtained. The affidavit contains sufficient indicia of probable cause to meet the totality of the circumstances test. In addition, the warrant and accompanying affidavit adequately described the criminal activity under investigation. The warrant was sufficiently particular. A warrant authorizing seizure of every single business record possessed by a business may be overbroad. But generally-phrased warrants are valid when they are phrased as specifically as the circumstances and nature of the activity under investigation permit. The first federal business warrant, which authorized a search for documents relating to firearms transactions, was not unconstitutionally overbroad.

(9) Nor did the officers exceed the scope of the search authorized by that warrant. Officers, suspecting fraudulent firearms transactions, were authorized to search for and seize all firearms transaction records. Officers could not tell merely by looking at the face of a particular firearms document whether it involved a fraudulent transaction. In this situation, officers were justified in taking all the documents and examining them later.

Guideline Applications - §2X1.1 Not Used When Conspiracy or Attempt is Covered By Drug Guideline;

Rule of Lenity - Ambiguity;

Minor Role

United States v. Onheiber, 98-6237 (March 31, 1999)

(Paul Antonio Lacy, FPD, Oklahoma City, Oklahoma)

Onheiber plead guilty to attempt to possess with intent to distribute six kilograms of cocaine.

HELD: (1) Section 2X1.1 does not apply when an attempt, solicitation, or conspiracy is expressly covered by another offense guideline. Such offense guidelines include §2D1.1, the guideline under which Onheiber was sentenced. The title of §2D1.1 expressly mentions attempts. The rule of lenity only applies in cases where there is grievous ambiguity. These guidelines do not contain a grievous ambiguity with regard to whether §2X1.1 should apply to attempted drug crimes. Section 2X1.1 clearly states it does not apply when the substantive guideline covers attempts, and specifically mentions §2D1.1 as a substantive guideline which covers attempts. In addition, recent amendments to the guidelines clear up any remaining hint of ambiguity. Amendment 447 effected no substantive change in the guidelines, but rather intended to incorporate the former §2D1.4 into the framework of the amended guidelines. Defendants convicted of attempting to commit drug offenses or of conspiring to do so are to be sentenced under the same guidelines as defendants convicted of completed drug offenses.

(2) The court reviews for clear error the refusal to grant a two-level reduction for minor participant. A defendant is not necessarily entitled to a sentence reduction under §3B1.2 because he can show he was a middleman.