Motion for Judgment of Acquittal - Review Standard;

Possession - Constructive, Joint Occupancy;

Admission of Evidence - Other Bad Acts (Rule 404(b)), Discretion Standard

United States v. Lazzano-Villalobos, 98-2162 (May 3, 1999)

Villalobos was convicted of possession with intent to distribute cocaine.

HELD: (1) The court reviews the denial of a motion for judgment of acquittal de novo, and reviews the evidence in the light most favorable to the government. A person constructively possesses contraband when he knowingly holds ownership, dominion or control over the object and premises where it is found. While exclusive possession may support an inference of constructive possession, joint occupancy of a vehicle, as in this case, cannot alone sustain such an inference. Where there is joint occupancy, the government must present direct or circumstantial evidence to show some connection or nexus linking Villalobos to the contraband. The evidence was sufficient in this case.

(2) The court reviews admission of Rule 404(b) evidence for abuse of discretion. The court considers whether the evidence was offered for a proper purpose and was relevant, and whether the trial court performed the balancing test and gave a proper limiting instruction. Villalobos' prior arrest was admissible to show knowledge of the hidden compartment, and was relevant because it was close in time. Villalobos relies on the McVeigh decision that there must be an express articulation of the balancing test. The circuit clarified that only an express articulation of the purpose of the evidence's admission is required.

Illegal Alien (8 U.S.C. § 1326) - Aggravated Felony (8 U.S.C. § 1101), Meaning of "Found"

United States v. Bencomo-Castillo, 98-2126 (May 13, 1999)

Castillo plead guilty to entering or attempting to enter after having been deported in violation of 8 U.S.C. § 1326. He had previously been convicted of a theft warranting at least one year imprisonment, an offense considered an aggravated felony. He was sentenced in accordance with the 16 level enhancement for deportation subsequent to an aggravated felony conviction under 8 U.S.C. § 1101(a)(43)(G).

HELD: (1) The district court's application of the guidelines is a question of law reviewed de novo. This is a case of first impression in the Tenth Circuit: whether an alien arrested under an alias and not discovered to be a prior deportee has been "found" within the meaning of § 1326. "Found in" is synonymous with "discovered in." Although the government lacked actual knowledge that Castillo was a previously deported alien before June 5, 1997, he contends the INS had constructive knowledge in the spring 1996. The government need not exercise more than reasonable diligence in screening for previously deported aliens. The government had neither constructive nor actual knowledge of Castillo's prior deportation until after September 30, 1996. Therefore Castillo was not "found" in the United States until after the amended definition of aggravated felony took effect. The enhanced sentence was proper.

Mistrial - Discretion Standard;

Jury - Purpose of Voir Dire, Juror Dishonesty, Clear Error Standard, Actual or Implied Bias;

Instructions - Discretion Standard, View as Whole, Theory of Case, Entrapment (Government's Burden);

Entrapment - Government Must Prove No Entrapment;

Obstruction of Justice - Perjury, Findings;

Substantial Assistance - Government Motion, (§5K1.1), Contract Principles, Review Standard

United States v. Cerrato-Reyes, Osuna-Reyes and Mejia, 98-4059, 98-4082, 98-4103 (May 5, 1999)

The defendants were convicted of possession of cocaine with intent to distribute.

APPEAL OF CERRATO-REYES:

HELD: (1) The court reviews denial of a motion for mistrial for abuse of discretion. Cerrato-Reyes claims jury dishonesty during voir dire. Under the Sixth Amendment an accused has a right to trial by an impartial jury. Voir dire examinations serves to protect that right by exposing possible bias. A new trial is necessary if Cerrato-Reyes can show a juror failed to answer honestly a material question on voir dire, and a correct response would have provided a valid basis for a challenge for cause. This test is not satisfied by a showing that a juror provided a mistaken but honest answer. The juror's honesty during voir dire and in chambers is a factual determination reviewed for clear error. The court could not say that the district court clearly erred.

(2) Actual bias is reviewed for clear error and implied bias is reviewed de novo. Actual bias can be shown by the expressed admission of the juror of a state of mind prejudicial to a party's interest. A finding of implied bias is a legal determination that turns on an objective evaluation of the challenged juror's experiences and relation to the case being tried. The exceptional nature of this doctrine is evident when examining cases in which implied bias is not found. The experiences of the challenged juror in this case do not support a finding of implied bias.

(3) The court reviews a decision to give a particular jury instruction for abuse of discretion and considers the instructions as a whole. A defendant is entitled to an instruction on his theory of the case, if the instruction is a correct statement of law, and if he has offered sufficient evidence for the jury to find in his favor. The court prefers an instruction on entrapment which clearly states the government carries the burden of proving no entrapment. But in view of the instructions as a whole, the jury was not misled. The circuit declined to require the government to prove the absence of entrapment as an element of the offense.

APPEAL OF OSUNA-REYES:

HELD: (1) The court reviews fact findings as to enhancement under obstruction of justice for clear error, and reviews de novo, the court's interpretation of the guidelines. The mere fact that a defendant testifies to his or her innocence and is found guilty does not automatically warrant a finding of perjury. As a result, the district court is required to indicate what specific testimony it finds to be untrue and how the testimony concerns a material matter designed to substantially affect the outcome of the case. The court's findings meet the requirements of Dunnigan.

APPEAL OF MEJIA:

HELD: (1) Mejia plead guilty. She agreed to cooperate. The agreement left it to the sole discretion of the government to decide whether to file a motion for downward departure based on substantial assistance. She testified on behalf of the government in the first trial. She was not notified about of the second trial of Osuna-Reyes, and because of that, the government declined to move for a downward departure. Instead, the government recommended a sentence at the low end of the guidelines. A motion of the government is a prerequisite under §5K1.1. The district court can only review the government's refusal to file a substantial assistance motion if the refusal violates the agreement, was based on unconstitutional motive, or in an egregious case where the prosecution stubbornly refused to file a motion despite overwhelming evidence that the accused's assistance has been so substantial as to cry out for meaningful relief. The court reviews this claim de novo. Plea bargains are governed by contract principles. The plea agreement did not require the government to make a §5K1.1 motion. The district court's role is limited to deciding whether the government made its determination in good faith. The government is in the best position to determine whether the assistance is substantial enough. There was no abuse of discretion in the district court's refusal to hold an evidentiary hearing in this case.

Admission of Evidence - Prior Convictions of Sexual Molestation (Rule 414), Rule 403 Balancing Test) Expert Testimony;

Expert Testimony - Discretion Standard, Discovery of Report, Summarize Medical Evidence, Vouching, Referral For Treatment, Harmless Error;

Witnesses - Vouching;

Sufficient Evidence - Review Standard, Time of Occurrence

United States v. Charlie, 98-2087 (May 7, 1999)

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

Charlie was convicted of several counts of sexual abuse of a child in Indian country.

HELD: (1) Rule 414, dealing with evidence of prior convictions for sexual molestation, is constitutional on its face because Rule 403 applies. The court will disturb a trial court's decision to admit evidence under Rule 403 only for abuse of discretion.

(2) Testimony of five health care professionals was admitted into evidence. The government elicited expert opinion testimony despite telling the court these witnesses were called as lay or fact witnesses. Review is for abuse of discretion. The government violated Rule 16 by failing to disclose a written summary of expert testimony. A district court's decision to apply sanctions is reviewed for abuse of discretion. The court considers the reasons for the delay in producing the materials, including bad faith, extensive prejudice, and feasibility of curing the prejudice with a continuance. The defendant did not suffer prejudice and the government was not motivated by bad faith.

(3) A qualified medical expert in a sexual abuse case can summarize medical evidence, express an opinion that the evidence is consistent or inconsistent with the victim's allegations of sexual abuse, can inform the jury of characteristics in sexually abused children, and describe the characteristics the alleged victim exhibits.

(4) Rule 702 imposes a special gatekeeping obligation on the trial judge to insure that an opinion offered by an expert is reliable. No reliability determination was made as to Doctor Ornelas' unconditional opinion that the two children were sexually abused. Testimony which vouches for credibility of a witness violates other evidentiary rules as well. Admission of this was erroneous.

(5) The counselors permissibly testified about their observations of the girls, the nature of the treatment, and what the girls said and did. Their opinions about symptoms and need for counseling were within their expertise. They were permitted to offer testimony that assumed the fact of abuse. However, it was error to admit statements which were outside the counselors' direct knowledge. These were unquestionably prejudicial and invaded the province of the jurors.

(6) A non-constitutional error is considered harmless unless a substantial right is affected. The court reviews the record as a whole in conducting harmless error analysis. The analysis is not easy in this case where the defendant took the stand and denied ever inappropriately touching the girls. There was no physical evidence of abuse and no eyewitnesses. But both girls testified and corroborated each other. The defendant had a prior conviction for sexual abuse of a child. The defendant's testimony was contradicted in three respects by other witnesses. The court found that the errors were harmless.

(7) In determining sufficiency of the evidence, the court determines whether the evidence is sufficient to allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Time is not an element of the offense, and if the prosecution proves the offense was committed within a few weeks of the date alleged in the indictment, that will be sufficient. The defendant had prostate surgery and could not have committed sexual abuse during the entire month of October 1995. There was no evidence tending to show that he committed the crime within a time period that could be considered within a few weeks of October 1995. The court reversed the conviction on count one. The court affirmed the other conviction.

Motion to Suppress - Review Standard, Uphold Decision if Any Reasonable View of Evidence to Support It;

Search Warrant - State Warrant, 18 U.S.C. § 3109, Fourth Amendment, Knock and Announce, Time to Wait, Exigent Circumstances, Policy;

Sufficient Evidence - Review Standard, Constructive Possession

United States v. Jenkins, 98-3017 (May 10, 1999)

(Steven K. Gradert, FPD, Wichita, Kansas)

Jenkins was convicted of possession with intent to distribute cocaine base and marijuana.

HELD: (1) On appeal from denial of a motion to suppress, the court views the evidence in the light most favorable to the government. Because the district court made no specific findings in support of its ruling that the officers waited a reasonable amount of time after knocking and announcing, the circuit must uphold the ruling if there is any reasonable view of the evidence to support it. Reasonableness of a search and seizure is a question of law reviewed de novo.

(2) State officers executing a state warrant are not governed by 18 U.S.C. § 3109, but are governed by the Fourth Amendment of the Federal Constitution. The standards of § 3109 are similar to the constitutional standards. Section 3109 requires officers to provide notice of authority and purpose before forced entry. The common law knock and announce principle is an element of the reasonableness inquiry under the Fourth Amendment. The Fourth Amendment includes a general presumption that police officers executing a search warrant of a residence must announce their presence and authority before entering. The circuit has not established a clear cut standard to determine the amount of time the officers must wait after knocking and announcing before forcibly entering a residence. The court has held that waiting ten seconds is reasonable, but three seconds is unreasonably short. A bright line rule is inappropriate. Exigent circumstances, such as the risk of destruction of evidence or threat of physical violence, may justify dispensing with the knock and announce principle altogether. Whether or not the officers' testimony is sufficient to prove the existence of a ten second policy within the Wichita Police Department, such an inflexible policy would violate the knock and announce rule. The reasonableness inquiry is evaluated on a fact dependent, case by case basis. The circuit was troubled by testimony in the record that occupants whose homes are searched rarely reach the door before the officers break it open. In spite of the circuit's grave concerns, the case did not squarely present the question of whether the ten second policy violates the knock and announce principle. The evidence supports the district court's conclusion that the officers complied with the knock and announce rule.

(3) In reviewing for sufficiency, the court reviews the evidence de novo, and in the light most favorable to the government, to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. To sustain a conviction for possession with intent to distribute, the government must prove the defendant possessed a controlled substance, knew he possessed it, and intended to distribute it. Constructive possession occurs when a person knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found. Because the defendant did not have actual possession of the cocaine base at the time of the search, the court determines whether he constructively possessed the drugs by virtue of his control over Ms. Payne's residence and the drugs. The defendant did not reside at Payne's residence on a full time basis but stayed there several nights a week. He had a key to the residence. The cocaine base was found in a hole in the ground over 39 feet from the back of the residence, accessible to many people including occupants of a nearby fraternity house. But an observing officer saw the defendant walk out the front door towards the back yard with people coming to the house, and the informant said she purchased crack cocaine from an individual named Loc, the defendant's nickname.

(4) As to the possession with intent to distribute marijuana, the seized marijuana was scattered throughout the interior of the residence. The evidence linking the defendant to the marijuana is not as ample as that linking him to the cocaine base, but it is still reasonable to infer that he constructively possessed the marijuana seized. The evidence also supports a reasonable inference that he intended to distribute the marijuana.

Habeas Corpus (28 U.S.C. § 2254) - Object to Magistrate's Recommendation, Waiver, Where to File;

Appellate Jurisdiction - Pro Se Docketing Statement As Notice of Appeal;

AEDPA - One Year Statute of Limitations, Grace Period, Tolling

Haney v. Addison, 98-6255 (May 10, 1999)

The district court held that Haney's § 2254 petition was time barred under the AEDPA.

HELD: (1) A magistrate's recommendation is not a final appealable order. Once the district court issued its order, Haney did not file an amended notice of appeal. But a pro se docketing statement may serve as the functional equivalent of a notice of appeal.

(2) Haney did not deliberately waive his right to object to the magistrate's recommendation where he was not advised where to file his objections, and where he filed timely objections with the court of appeals rather than the district court. Section 636(b), 28 U.S.C., and Rule 72(a), F.R.Civ.P. do not specify where objections should be filed.

(3) The district court correctly dismissed Haney's petition as time-barred by the one year statute of limitations imposed by the AEDPA. Under Simmonds, Haney had until April 23, 1997 to file his federal habeas petition. He filed an application for state post-conviction relief on February 5, 1997, which stopped the running of the one year grace period with only 78 days remaining. The grace period began to run again on April 28, 1997 when Haney's state post-conviction relief was denied. He had until July 15, 1997 to file a petition but did not do so until December 3, 1997.

Illegal Aliens - State and Local Police Can Arrest For Violations of Federal Law;

Preemption - Supremacy Clause, Congressional Intent, 8 U.S.C. § 1252c

United States v. Vasquez-Alverez, 98-6325 (May 11, 1999)

(June E. Tyhurst, FPD, Oklahoma City, Oklahoma)

Vasquez was charged with illegal entry after deportation in violation of 8 U.S.C. § 1326. He moved to suppress his post-arrest statements, fingerprints and identity. He claimed that 8 U.S.C. § 1252c limits the authority of state and local police officers, allowing such officer to arrest an illegal alien only when the INS has confirmed, before the arrest, that the alien has previously been convicted of a felony and has been deported. The district court held that suppression was not the appropriate remedy for a violation of § 1252c. Vasquez entered a conditional guilty plea. The United States conceded that § 1252c does not authorize the arrest, but argues that state law did so independently. State and local law enforcement officers are empowered to arrest for violations of federal law, as long as such arrest is authorized by state law. Congress' power to preempt state law arises from the Supremacy Clause. Congressional intent is paramount in preemption analysis. The statute's introductory language mandates the authority newly granted state and local officers in § 1252c to be given effect, despite any contrary preexisting federal limitations. This reading is consistent with the statute's limited legislative history. Nor is there any federal preemption implicit in the design of § 1252c. Congress intended § 1252c to displace perceived federal limitations on the authority of state and local officers to arrest criminal illegal aliens.

Motion to Suppress - Review Standard;

Search - Garbage, Curtilage of Home, Expectation of Privacy, Public Accessibility

United States v. Long, 98-3192 (May 26, 1999)

(David J. Phillips, FPD, and Charles D. Dedmon, FPD, Topeka, Kansas)

Long moved to suppress evidence obtained as a result of seizure of three garbage bags from a trailer parked near his garage. After the motion was denied, he entered a conditional plea to one count of possession of a firearm.

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

(2) A warrantless search of the defendant's garbage bags was unreasonable, if he had an expectation of privacy in the garbage that society accepts as objectively reasonable. If the trash bags were not within the curtilage of his home, there was no Fourth Amendment violation. Curtilage is the area to which extend the intimate activity associated with the sanctity of a man's home and privacies of life. The court considers the proximity of the area to the home, inclusion of the area within an enclosure surrounding the home, nature of the use of the area, and steps taken to protect the area from observation. The trailer was located outside the curtilage of the home. The district court's determination of this is not clearly erroneous.

(3) Whether officers violate the Fourth Amendment does not depend solely on curtilage. The defendant still must show he had a reasonable expectation of privacy. In garbage cases, Fourth Amendment reasonableness turns on public assessibility to the trash. Society does not recognize a reasonable expectation of privacy in trash left for collection in an area assessable to the public.

Appellate Jurisdiction - Notice of Appeal From One Case and Not Others, Concurrent Sentence;

Restitution - MVRA, Mandatory, Crime of Violence, Child Pornography, Cost of Mental Health Treatment

United States v. Johnson, 98-2082 (May 27, 1999)

(Alonzo J. Padilla, FPD, Albuquerque, New Mexico)

Johnson was indicted in the District of New Mexico, 97-282, with coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b), and interstate travel for the purpose of engaging in sexual acts with a minor in violation of § 2423(b). An information, 97-630, was filed in Massachusetts charging possession of child pornography and criminal forfeiture in violation of 18 U.S.C. § 2252(a)(4)(B). He entered a plea agreement which disposed of the two cases with two different case numbers.

HELD: (1) One issue defendant raises deals with the second case, but his notice of appeal was filed under the other case number. To the extent defendant seeks relief from his sentence in 97-630, his appeal is out of time. However, in the other case, 97-282, the merits of the issue can be reached because of the multiple count adjustment pursuant to §3D1.4. In sentencing, the district court effectively combined the counts. But the defendant's challenge, if successful, will only affect the sentence imposed in 97-282. He will not be entitled to relief on the concurrent sentence in 97-630.

(2) Section 2G2.4(b)(3) provides for a two level increase in a possession of child pornography sentence, when the defendant obtains the visual images through use of a computer. It does not violate Congressional intent to apply the enhancement, not only when the possessor sent the images via computer, but when the possessor received the images through use of a computer.

(3) The question of whether these charges constitute a crime of violence for purposes of the Mandatory Victim Restitution Act, 18 U.S.C. § 3663(A), is a question of first impression. This was not raised below. Review is for plain error. Under the MVRA, restitution is mandatory. The circuit held the district court did not commit plain error by ordering restitution without considering ability to pay.

(4) A party may not invite the district court to impose restitution and then later complain that the court was without authority to do so. Therefore the court did not address the argument that because the victim suffered no bodily injury, the district court had no authority to order restitution for the cost of mental health treatment.

Motion to Suppress - Review Standard;

Warrant - Lack of Jurisdiction of State Officer, Federal Law Controls in Federal Case;

Arrest - Probable Cause, Search Incident To;

Confidential Informants - Discretion Standard, Disclosure, Warrant Affidavit, Witness;

Discovery;

Exculpatory Evidence - Discovery, Impeachment

United States v. Green, 98-3243 (May 28, 1999)

(Brian K. Holland, Denver, Colorado)

Green was convicted of possession with intent to distribute methamphetamine and cocaine.

HELD: (1) When reviewing denial of a suppression motion, 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 reviewed de novo.

(2) Incriminating evidence was seized from Green's house from the November and December searches. Wichita Police Department (WPD) officers obtained warrants to search the residence and executed the warrant. It is uncontested that they were acting outside their jurisdiction in violation of Kansas law. However, in federal prosecutions, the test of reasonableness is determined by federal law, even though police actions are those of state police officers. The fact that a search may violate state law is irrelevant, as long as the federal constitution is not offended. The Fourth Amendment requires only that the warrant contain probable cause supported by an oath or affirmation, and a particular description of the place, person and things to be searched and seized.

(3) As to the stop and search of Green's van, WPD officers stopped and searched the car within the city limits of Wichita and so were within their jurisdiction. The fact that some of the uncontested probable cause for the stop was obtained by officers acting outside their jurisdiction is not necessarily a matter of constitutional significance. The Fourth Amendment requires only that arresting officers have probable cause to believe the person to be arrested has committed a crime. The warrantless arrest of Green was lawful, and the officers were entitled to search the passenger compartment of his car incident to his arrest. The standards in Terry v. Ohio are inapplicable because the officers had probable cause here.

(4) The court applies an abuse of discretion standard to a claim regarding disclosure of an informant and a de novo standard as to exculpatory evidence.

(5) In this case the court granted the motion for disclosure of the informant, and the government disclosed it but did not do so in a timely fashion. But Green did not move for disclosure of the informant's identity until after the suppression hearing was largely completed. In addition, under Franks v. Delaware, a defendant may challenge the veracity of statements by a search warrant affiant, and not the veracity of statements made by a confidential informant to the affiant. The informant did not testify at trial because Green did not call her to testify, despite the fact that she was under subpoena. By the time the prosecution rested, Green was aware of her identity and had had a chance to interview her. Green objects to hearsay testimony of Officer Banister. But he did not object to the introduction of these statements at trial. He did not object because the government had said it would be calling the informant, and Green thought he would have a chance to cross examine the informant. Review would be for plain error. Because Green did not call the informant as a witness, the court did not find plain error.

(6) In complaining about the government's failure to comply with the discovery order and refusing to turn over certain information to impeach the informant, Green does not identify any particular exculpatory evidence that the government failed to disclose. In addition, the discovery order and Giglio apply only to impeachment information relating to a government witness, and she was not called as a witness.