United States v. Mohammad Alahmad, 98-1465 (May 1, 2000); (Howard A. Pincus, FPD, Denver, Colorado)

Alahmad appeals his conviction of international parental kidnapping, 18 U.S.C. § 1204. The child, Brittany, lived with her mother's mother for the first seven years of her life. Then the child's father sought visitation rights and a custody dispute arose. A Colorado court awarded legal custody of the child to the father and granted the mother and grandmother liberal visitation rights. This included spending one night a week with the grandmother. One day, Brittany did not arrive for the scheduled visit and the grandmother learned that the defendant father had taken her to Jordan, his native land, for 10 days. After a hearing, a Colorado court ordered the defendant not to take Brittany from Colorado permanently without leave of court. The defendant repeatedly threatened to take the child permanently. In July 1996, he told the grandmother that he planned to take the child to Disneyland for a week. After several weeks had passed, the grandmother gained access to the defendant's apartment and found it nearly empty. He later called her to say he had taken Brittany to Jordan. In March 1997, the Colorado court found the defendant had violated its earlier order and issued a new order transferring permanent custody to the grandmother. The FBI issued a warrant for the defendant's arrest. In February 1998, the defendant returned to the United States, leaving the child in Jordan. Federal agents arrested him and he was convicted of kidnapping.

HELD: 

(1) The court reviews de novo the district court's statutory interpretation. Section 1204(a) prohibits the removal of a child from the United States with intent to obstruct the lawful exercise of parental rights. The act defines parental rights as rights to physical custody of the child, whether joint or sole, and including visiting rights, and whether arising by operation of law, court order, or legally binding agreement of the parties. At the time the government prosecuted the defendant, the grandmother enjoyed visitation rights under a state court order. Visiting rights are categorized under the statute as parental rights. Therefore, the district court properly applied the statute to the defendant.

(2) For the first time on appeal the defendant raises an equal protection argument, and this is reviewed for plain error. His claim is based on the fact that he could not be prosecuted if the mother had not shared visiting rights with the grandmother. However, the government need only demonstrate a rational basis for disparate treatment.

(3) The court reviews a decision to admit evidence for abuse of discretion. The defendant argues the court erred in admitting a redacted version of the Colorado court's order transferring custody of the child to the grandmother, claiming this was not relevant to his earlier intent, and that any relevance was outweighed by prejudicial impact. Evidence is relevant when it bears any tendency to render a fact that is of consequence to the determination of an action more or less probable. The order was relevant. The defendant had every opportunity to argue that he had complied with an earlier order of the court. In addition, there was abundant evidence from which the jury could infer the defendant's intentions when he took the child from the United States including his repeated threats, false representation, empty apartment, and failure to communicate.

(4) An appellate court's review is particularly deferential when a ruling concerns admission of alleged hearsay evidence. The defendant claims the 1997 order is hearsay. The court did not reach the issue, finding the error, if any, was harmless. The court denied the motion to submit a supplemental opening brief based on an issue currently before the Supreme Court, finding the arguments would have no bearing on this case at the time.

Death Penalty;  Habeas Corpus (28 U.S.C. § 2254) - AEDPA Not Apply;  Exhaust State Remedies - Futility;  Procedural Bar;  Competency - Procedural, Standard;  Instructions - Lesser Included;  State Law Errors;  Ineffective Assistance of Counsel - State Procedural Bar is Adequate Because Different Counsel on Appeal and Trial Counsel's Performance Could be Reviewed From the Trial Record;  Mitigation;  Aggravating Factors - Murder Committed While Defendant Serving Sentence of Imprisonment on Felony Conviction;  Continuing Threat

James v. Gibson, 98-7139 (May 2, 2000); (Gloyd L. McCoy, Oklahoma City, Oklahoma)

This is a death penalty habeas action.

James, Brown and Berry were co-defendants in a federal case involving theft of government property. All three had plead guilty. James and Brown believed that Berry had snitched on them. Another inmate encouraged them to strangle Berry. The three were charged with murder. James testified and admitted strangling Berry with a wire. The jury rejected his defense of intoxication. In the penalty phase, James presented mitigation.

HELD: 

(1) The AEDPA does not apply to this appeal because the original habeas action was filed before its effective date.

(2) Exhaustion is not required if an attempt to exhaust would be futile. Even if failure to exhaust is excused, procedural competency claims may be procedurally barred unless the petitioner can show cause and prejudice or a fundamental miscarriage of justice. To be adequate, a state's procedural bar must have been firmly established and regularly followed. A defendant cannot be expected to comply with a procedural rule that did not exist at the time of the purported default. Therefore, Oklahoma's amendments regarding raising competency claims are not an adequate ground.

(3) In order to prevail on a procedural competency claim, a petitioner must establish a bonafide doubt as to competency. A petitioner is not competent to stand trial if he lacks sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and did not have a rational as well as factual understanding of the proceedings. The record does not show a bonafide doubt regarding James' competence to stand trial.

(4) The Ake case was not available at trial, but was available at the time of direct appeal. Therefore the proper standard is whether a petitioner could have made a showing that his sanity or mental state at the time of the offense would be a significant factor at trial. This applies both to the guilt and penalty phases of a capital trial. Nothing indicates that James' sanity would have been a significant factor. Even if James were entitled to psychiatric assistance, failure to provide that assistance is subject to harmless error analysis.

(5) A trial court must instruct the jury in a capital case on a lesser included non-capital offense if the evidence would support such an instruction. The Beck requirement is satisfied so long as the jury had the option of at least one lesser included offense, even if there are other lesser included offenses also supported by the evidence.

(6) A federal court may not issue a writ of habeas corpus on the basis of error in state law.

(7) Ineffective assistance of counsel claims are mixed questions of law and fact. A petitioner must show deficient performance and prejudice. Oklahoma bars review in post-conviction proceedings of ineffective assistance of trial counsel claims not raised on direct appeal. This state procedural bar is adequate because James had different attorneys at trial and direct appeal, and his ineffective assistance claim could have been reviewed from the trial record alone.

(8) The state raised procedural bar as to ineffective assistance in presentation of mitigation evidence. Counsel has the duty to conduct a reasonable investigation for mitigating evidence. Counsel's failure to investigate was influenced by James himself. In any event, James cannot show prejudice.

(9) James claims there was insufficient evidence to support the aggravating circumstance that the murder was committed by a person while serving a sentence of imprisonment on conviction of a felony. Although he had plead guilty to a federal felony, he had not been sentenced. If the state court addressed this issue on the merits, state procedural bar will not preclude habeas review. The OCCA did not address the merits of this claim. James makes no attempt to demonstrate cause or a miscarriage of justice. In any event, unless an aggravator is unconstitutionally vague, states are free to select whatever criteria they wish, and a federal court is bound by a state court's interpretation of a state aggravator.

(10) A defendant's criminal history, the callousness of the crime, and his threats against others are factors which may be considered in determining whether the evidence is sufficient to support the continuing threat aggravator.

Witnesses - Unavailability, Doctrine of Waiver by Misconduct;  Confrontation - Waive Objection by Misconduct;  Hearsay - Waive Objection by Misconduct;  Conspiracy - Murder of Witness, Pinkerton Liability

United States v. Cherry, Gibbs, Price, Parker, 99-7019 (May 2, 2000)

This is an interlocutory appeal from the district court's grant of a motion to suppress out of court statements made by a murdered witness. The court had to address the doctrine of waiver by misconduct and how Rule 804(b)(6), F.R.Ev. applies to defendants who did not themselves directly procure the unavailability of a witness, but allegedly participated in a conspiracy, one of the members of which murdered the witness. The circuit held that co-conspirators can be deemed to have waived confrontation and hearsay objections as a result of certain actions that are in furtherance, within the scope, and reasonably foreseeable, as a necessary or natural consequence of an ongoing conspiracy.

HELD: 

(1) The court reviews evidentiary decisions for abuse of discretion, but reviews de novo a trial court's legal conclusions about the rules of evidence and the Confrontation Clause. The Supreme Court has held that a defendant's intentional misconduct can constitute waiver of Confrontation Clause rights. Rule 804(b)(6) codifies this rule. This case is based, not on direct procurement, but rather on involvement in a conspiracy. The circuit would not extend substantive Pinkerton liability in the manner urged by the government, and therefore declined to adopt the Eleventh Circuit's version of Pinkerton liability in the context of substantive criminal liability. But the circuit agreed that Pinkerton's formulation of conspiratorial liability is an appropriate mechanism for assessing whether the actions of another can be imputed to a defendant, for purposes of determining whether the defendant has waived confrontation and hearsay objections. A co-conspirator may be deemed to have acquiesced in the wrongful procurement of a witness's unavailability, for purposes of Rule 804(b)(6) and the waiver by misconduct doctrine, when the government can satisfy the requirements of Pinkerton. The district court did not abuse its discretion in holding the government failed to show by a preponderance that any of the defendants directly participated in the execution of the murder, but the circuit remanded the matter.

Death Penalty;  Habeas Corpus (28 U.S.C. § 2254) - AEDPA Applies, Presumption of Correctness;  Competency - Standard, Burden of Proof;  Procedural Bar;  Prosecutorial Misconduct - Knowingly Present False Testimony, Improper Remarks, Suppress Exculpatory Evidence;  State Law - Errors Not Reviewable, Federal Court Bound by Interpretations;  Aggravating Factors - Reweigh or Harmless Error;  Cumulative Error

Woudenberg v. Gibson, 98-7167 (May 2, 2000)

Woudenberg was convicted of first degree murder and sentenced to death. His writ of habeas corpus was denied after exhausting state remedies. The AEDPA applies.

HELD: 

(1) A petitioner is competent to stand trial if he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and if he has a rational as well as factual understanding of the proceedings. A petitioner can assert a procedural competency claim, by alleging the trial court either failed to hold a competency hearing, or held a hearing but employed an unconstitutional burden of proof. The state court had required him to prove incompetence by clear and convincing evidence, a standard found unconstitutional by the Supreme Court. But the government argues that petitioner had not exhausted this claim and urges that it is procedurally barred. The circuit agreed. However, a federal court may deny habeas relief on the merits instead of applying the bar. Petitioner has not established a bonafide doubt regarding competency.

(2) The prosecution may not deliberately deceive the court or jury by presenting false testimony. Petitioner bears the burden of proving the prosecutor knowingly presented false testimony. Woudenberg failed to meet this burden.

(3) Generally, a prosecutor's improper remark will require reversal only where the remark sufficiently infected the trial to make it fundamentally unfair. The prosecutor's comment did not improperly call attention to Woudenberg's failure to testify.

(4) Cumulative error analysis aggregates all errors that have been found harmless individually, and analyzes whether their cumulative effect is such that collectively they are not harmless with regard to the outcome of the trial.

(5) To establish a Brady violation, petitioner bears the burden of showing that the prosecution suppressed material evidenced favorable to the petitioner. The petitioner has not rebutted, by clear and convincing evidence, the presumption of correctness afforded the OCCA's finding.

(6) State trial courts are not constitutionally required to instruct on offenses that are not lesser included offense of the charged crime. Federal habeas relief is not permitted for state law errors.

(7) Petitioner's claim, that the OCCA has never determined that the Oklahoma constitution permits reweighing of facts in appellate resentencing, has never been presented to the federal district court and therefore the circuit did not need to consider it. But even if the claim were properly before it, it would not succeed as the OCCA has endorsed appellate resentencing, and the circuit is bound by the court's interpretations of state law.

(8) The Supreme Court has held that a petitioner's constitutional rights are not infringed when an appellate court invalidates one of two or more aggravating circumstances, but affirms the death sentence after finding that the remaining aggravators outweigh the mitigating evidence. Or the appellate court may engage in harmless error review. Although the OCCA's discussion is cursory, the reweighing was constitutionally sufficient.

Denial of Downward Departure - Appellate Jurisdiction, Application Note 5, §2L1.2, Koon and §5K2.0;  Illegal Aliens (§2L1.2) - Downward Departure Under Application Note 5, Term of Imprisonment Includes Suspended Portion

United States v. Marquez-Gallegos, 99-1270 (May 3, 2000); (Vicki Mandell-King, FPD, Denver, Colorado)

Marquez plead guilty to unlawful reentry after having been previously deported after an aggravated felony conviction. He received the 16 level enhancement under §2L1.2 due to the prior conviction of an aggravated felony. He requested a downward departure on two bases and the district court denied relief. The circuit affirmed.

HELD: 

(1) The district court concluded that, as a matter of law, it lacked discretion to grant a downward departure on the basis of seriousness of the underlying aggravated felony. The district court also expressed doubt as to whether, even if it had discretion, it would grant such a departure. The district court did not go so far as to say it would not have departed downward and therefore the circuit had jurisdiction to review the district court's decision that it lacked discretion to depart downward. Review is de novo.

(2) Application note 5, §2L1.2, states that aggravated felonies that trigger the 16 level enhancement vary widely. The note provides for a downward departure based on lack of seriousness of the aggravated felony, if the defendant has previously been convicted of only one felony offense, such offense was not a crime of violence or firearms offense, and the term of imprisonment imposed for such an offense did not exceed one year. Marquez was ineligible for the downward departure under note 5, because the term of imprisonment imposed for his underlying aggravated felony was three years and thus exceeded one year. The fact that the sentence was suspended is irrelevant under United States v. Chavez-Valenzuela.

(3) With regard to whether the district court could depart under §5K2.0, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the guidelines. Where the factor has already been taken into account, departure is permissible only if that factor is present in a manner or degree unusual enough to distinguish the case from the heartland. The Commission encouraged downward departures based on lack of seriousness of the underlying aggravated felony in application note 5. Because Marquez did not qualify under that note, a downward departure under §5K2.0 would only be permissible if Marquez' case fell outside of the heartland of cases of unlawful reentry subsequent to an aggravated felony. The circuit held that application note 5 implicitly defines the heartland of unlawful reentry subsequent to aggravated felony cases to be all those not falling within the class delineated in the note. Because Marquez' case fell within the heartland of §2L1.2, the district court did not err in concluding that it lacked discretion to depart under §5K2.0. The Tenth Circuit recognized that the Second Circuit's decision and its own case may be in tension with decisions of three other circuits.

Death Penalty;  Habeas Corpus (28 U.S.C. § 2254) - AEDPA;  Evidentiary Hearing;  Ineffective Assistance of Counsel - Failure to Investigate, Deficient Performance and Prejudice; Venue;  Jury - Opposition to Death Penalty;  Evidentiary Rulings - Fair Trial;  Insufficient Evidence - Question of Law or Fact;  Prosecutorial Misconduct;  Due Process - Failure to Inform Jury Defendant is Ineligible for Parole When Future Dangerousness is Issue

Mayes v. Gibson, 99-6047 (May 4, 2000)

Mayes was convicted of first degree murder and sentenced to death. After exhausting Oklahoma state remedies, he filed for habeas relief which was denied.

HELD: 

(1) Mayes is entitled to an evidentiary hearing on the issue of ineffective assistance if his allegations, if true and not contravened, would entitle him to relief. This case is governed by the AEDPA. Under Strickland, petitioner has to show deficient performance and prejudice. In capital cases, the right to present mitigating evidence to the jury is constitutionally protected. Counsel has a duty to make reasonable investigation, or make a reasonable decision that makes particular investigations unnecessary. A federal court need not presume correct factfindings of the state court, if the habeas petitioner did not receive a full and fair hearing. The only possible inference, from affidavit evidence and the record as a whole, is that the investigation conducted by defense counsel fell short of the mark of reasonableness. Defense counsel failed to conduct a reasonable investigation. This necessitates an inquiry into whether this failure was prompted by a reasonable decision not to investigate. But the state of the record is such that the court could only speculate. Before determining whether Mayes is entitled to a hearing, the court had to determine whether he was prejudiced by counsel's deficiency. Given the relative weakness of the state's case, the jury's struggle and deliberations, and the fact that only one aggravator was found, the circuit concluded that Mayes had shown prejudice and therefore is entitled to an evidentiary hearing.

(2) The court reviews the trial court's denial of change of venue for abuse of discretion. The court did not find any abuse of discretion.

(3) Due process mandates that a defendant receive adequate notice he could receive the death penalty, and have a meaningful opportunity to deny or explain the state's evidence.

(4) Review of the voir dire indicates the trial judge did not dismiss any jurors without first clarifying that they opposed the death penalty to a degree which would have made it impossible for them to follow the law.

(5) Habeas relief may not be granted on the basis of state court evidentiary rulings unless they result in a fundamentally unfair trial. The circuit found no violation of the Confrontation Clause. Defense counsel had an opportunity to question the witness' possible bias.

(6) The standard of review of insufficiency of the evidence is whether, after considering all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found each separate element of the crime charged was proved beyond a reasonable doubt. There is some debate as to whether, under the AEDPA, a sufficiency claim is treated as a question of law or fact. Either way, the difference is inconsequential. The court could not conclude that the state court's decision is contrary to the Jackson v. Virginia rational trier of fact test.

(7) Habeas relief is not warranted unless prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.

(8) Under Simmons, when a defendant's future dangerousness is at issue and state law prohibits release on parole, due process is violated by the failure to inform the jury that the defendant is ineligible for parole. But here, the court instructed the jury on life, life without possibility of parole, and death. This three-way choice notifies the jury that the defendant is parole ineligible.

Government Appeal (18 U.S.C. § 3731) - Appeal Barred if Double Jeopardy Bars Further Prosecution, Judgment of Acquittal Not Appealable;  Judgment of Acquittal - Ruling Resolves Factual Element of Charge, Ruling That Evidence is Insufficient Bars Appeal;  Double Jeopardy - Bar Appeal, Dismissal of Indictment or Evidentiary Ruling

United States v. Hunt and Jones, 99-1120 (May 8, 2000); (Charles Szekely, FPD, Denver, Colorado)

A grand jury indicted Hunt and Jones on 16 counts of theft from the mail in violation of 18 U.S.C. § 1708. During a bench trial, the district judge entered a judgment stating "I find and conclude that the defendants are not guilty under the indictment as charged. The district judge concluded the indictment alleged a theft from CTC, CTC was not part of the mail under 18 U.S.C. § 1708, and the indictment failed to allege any other theft from the mail. The government appealed. The circuit agreed that the double jeopardy clause bars the appeal and dismissed the government's appeal.

HELD: 

(1) Section 3731, 18 U.S.C., authorizes the government to appeal from a decision, judgment or order of a district court dismissing an indictment or granting a new trial, except that no appeal shall lie where the double jeopardy clause prohibits further prosecution. The double jeopardy clause was directed at the threat of multiple prosecution. The double jeopardy clause bars some government appeals. A judgment of acquittal, whether based on a jury verdict or a ruling by the court that the evidence is insufficient, may not be appealed. The double jeopardy clause bars this appeal if there was in effect an acquittal below, and if reversal would require a second fact finding proceeding.

(2) The district court labeled its decision an acquittal, but that is not controlling. The circuit had to determine whether the ruling actually represents a resolution of some or all of the factual elements of the charge. The district court's ruling satisfies that requirement. Proof that an item was stolen from the mail is an essential element of a § 1708 violation. When a district court has made a fact finding adverse to the government on an essential element, legal rulings related to that decision are not separately appealable. It does not matter that this fact finding was arrived at under the influence of an erroneous view of the law. The ruling represents a judgment by the court that the evidence is insufficient to convict, and the circuit lacks jurisdiction. Two other circuits have applied this reasoning to cases involving variances from the indictments.

Motion to Suppress - Review Standard;  Search - Consent;  Encounter - Detention, Consensual Encounter;  Ineffective Assistance of Counsel - Review on Appeal Where New Counsel Moved to Withdraw Guilty Plea;  Guilty Plea - Withdrawal Amount of Drugs - Weight of Actual Methamphetamine or Mixture

United States v. Gigley, 99-3025, 99-3048 (May 17, 2000); Marilyn M. Trubey (FPD, Topeka, Kansas)

Cheryl Gigley conditionally pled guilty to the possession of methamphetamine with intent to distribute. She was sentenced to ten years. She appealed the denial of her motion to suppress drug evidence and her motion to withdraw guilty plea. The government cross-appealed based on the calculation of quantity of drugs.

HELD: 

(1) In reviewing the denial of a motion to suppress, the court views the evidence in the light most favorable to the government. The ultimate determination of constitutionality is reviewed de novo.

(2) The district court did not clearly err in finding that the defendant voluntarily consented to the search of her van. Because a consensual encounter is voluntary, it does not constitute a seizure. The scope of the search is limited by the breadth of the consent given. The detention ended when the officer returned her license and registration. The consensual encounter began when the defendant granted the officer permission to ask her some questions. The fact that she was sitting in the front passenger seat of the patrol car does not make her consent involuntary. Nor does the defendant's hesitation make the consent involuntary. The officer did not exceed the scope of consent in performing the search.

(3) The record is sufficient for review of defendant's ineffective assistance of counsel claim, where new counsel moved to withdraw the guilty plea based on erroneous advice of former counsel. The court reviews the denial of the motion to withdraw guilty plea for abuse of discretion. The court considers assertion of innocence, prejudice to the government, delay in filing the motion, inconvenience to the court, assistance of counsel, knowing and voluntary plea, and waste of judicial resources. A plea is valid if it represents a voluntary and intelligent choice among alternatives. The defendant entered her guilty plea voluntarily, and counsel provided effective assistance in connection with the plea.

(4) In calculating the amount of drugs, the presentence report relied on the amount of methamphetamine mixture. The government objected, urging that the quantity should be based on pure methamphetamine. The court reviews factfindings for clear error, and interpretation and application of the guidelines de novo. The government has the burden of proving the quantity of drugs by a preponderance. The guidelines provide that the district court should use the entire weight of the mixture of the substance, or the weight of the actual PCP or methamphetamine, whichever is greater. The district court should have used the quantity of actual methamphetamine.

Prison Litigation Reform Act (PLRA) - Exhaust Administrative Remedies, Money Damages or Injunctive Relief

Miller v. Menghini, 99-3401 (May 18, 2000)

Miller brought a civil rights complaint under 42 U.S.C. § 1983, asserting constitutional claims related to the prison industry work assignment. The complaint is governed by the Prison Litigation Reform Act of 1995 (PLRA). The Act requires that administrative remedies be exhausted before bringing an action. Where no administrative remedies are available, dismissal is improper. Money damages are not available through administrative procedures. Therefore Miller is not required to exhaust his claim for money damages, because no available administrative remedies are available. The district court failed to distinguish between Miller's monetary and injunctive claims.

Motion to Suppress - Review Standard;  Traffic Stop - Probable Cause to Believe Traffic Violation Occurred, Detention for Additional Questioning, Consensual Encounter, Consent to Search

United States v. Rodriguez, 99-3004 (May 18, 2000)

Rodriguez entered a conditional plea to possession with intent to distribute methamphetamine. He appeals the district court's denial of his motion to suppress evidence and statements after a traffic stop.

HELD: 

(1) When reviewing the denial of a motion to suppress, the court accepts factfindings unless clearly erroneous, and the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewed de novo.

(2) The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The district court's finding regarding the inconsistency in the officer's testimony as to the number of times the car crossed the dividing line, and the condition of the rear window, are not clearly erroneous. A driver may deviate from a lane for good cause without violating the law. However, an officer has probable cause to stop a vehicle when it drifts onto the shoulder under optimal road, weather and traffic conditions. The circuit also rejected the challenge regarding fabrication of a seatbelt violation.

(3) An officer conducting a routine traffic stop may request a drivers license and vehicle registration, run a computer check, and issue a citation. After a driver produces a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way without being subject to further delay. The officer may detain the driver for additional questioning if he has an objective, reasonable and articulable suspicion that illegal activity has occurred. Further questioning is also permissible if the initial detention has become a consensual encounter. Defendant's encounter became consensual. A consensual encounter occurs where there is voluntary cooperation by the private citizen in response to non-coercive questioning by the police. The police must not use a coercive show of authority such as more than one officer, display of a weapon, physical touching, or use of a commanding tone. That would indicate compliance is compelled. The encounter was consensual.

(4) The government bears the burden of proving that consent was freely and voluntarily given for search of the vehicle. The government met its burden.

Indictment - Dismissal In Court's Discretion, Sufficiency is Reviewed De Novo;  (18 U.S.C. § 2320) - Elements, Ambiguity in Statute, Goods Versus Labels, Trademarks Distinguished From Copyrights

United States v. Giles, No. 99-6036 (May 19, 2000)

Giles was convicted of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. In a case of first impression, the circuit concluded that an individual who traffics in trademarks which are not attached to any goods or services does not violate the federal criminal trademark infringement statute, 18 U.S.C. § 2320.

HELD: 

(1) The court reviews the grant or denial of a motion to dismiss an indictment for abuse of discretion. When dismissal involves issues of statutory interpretation or sufficiency of the charge, the court reviews the district court's decision de novo.

(2) To convict Giles under § 2320, the government must prove that he trafficked or attempted to traffic in goods or services, he did so intentionally, he used a counterfeit mark on or in connection with such goods and services, and he knew the mark was counterfeit. When the wording of a statute is ambiguous and its legislative history fails to clarify which interpretation is correct, the court should apply a policy of lenity and construe the statute in favor of the criminal defendant. A conviction depends on how the court defines the term "goods." The statute does not define "goods." An examination of other definitions within the pertinent statutes indicates that "goods" were intended to be viewed as separate and distinct from the marks they carry. This issue is made complex because a trademark is easily conceived of as an abstract symbol or design, which is carried by the tangible goods at issue. The question comes down to whether this label can be considered a "good" if it is disconnected from its host good and sold for a profit. The circuit declined to follow the Boston Professional decision, finding that the patch sets are not goods but labels. Section 2320 does not prohibit trafficking in counterfeit labels. Section 2318 does make it illegal to traffic in counterfeit labels for specific products. Section 2320 does not contain such a provision, so it does not forbid the mere act of trafficking in counterfeit labels which are unconnected to any "goods." Of course, trafficking in counterfeit labels could expose a defendant to liability as an aider and abettor. Section 2320 limits the marks it protects to those that are identical with, or substantially indistinguishable from, a mark registered for those goods or services on the principal register in the United States Patent and Trademark office. Criminal liability can only occur if a spurious mark is used on or in connection with goods or services for which the genuine mark is actually registered. The trademark registration in this case gives the company the exclusive right to use its mark on various items, but makes no attempt to register the trademark for use on leather patches or medallions.

Speedy Trial - Dismissal Without Prejudice, Discretion, Factors, Significant Delay;  Motion to Suppress - Review Standard, No Standing as Invitee;  Severance of Counts - Discretion;  Cross-Examination - Discretion, Limit Extent, Confrontation Clause;  Proportionality (Eighth Amendment);  Three Strikes - Threat of Use

United States v. Jones, No. 99-4071 (May 24, 2000)

Jones was convicted of Hobbs Act violations, bank robbery and firearm charges. He received a mandatory life sentence under 18 U.S.C. § 3559, the three-strikes law. The conviction stems from a several month crime spree across Utah.  The trial court dismissed the indictment without prejudice based on a finding that Jones' rights under the Speedy Trial Act were violated. The government re-indicted Jones. Jones argued that the dismissal should have been without prejudice. This court previously addressed whether the dismissal should have been with or without prejudice and had remanded to the district court to recalculate the total number of non-excludable days and to redetermine, based on that calculation whether the dismissal should have been with prejudice. On remand the district court concluded dismissal without prejudice was appropriate.

HELD: 

(1) The district court's decision to dismiss an indictment without prejudice for violation of the Speedy Trial Act is reviewed for abuse of discretion. The factors that are considered include seriousness of the offense, facts and circumstances of the case leading to dismissal, and impact of re-prosecution on the administration of the act and the administration of justice. Prejudice to the defendant is another factor to be considered. The court upheld the decision to dismiss without prejudice. The seriousness of the charges does not automatically justify dismissal without prejudice, in light of the significant delay in this case. Where the delay is the result of intentional dilatory conduct or a pattern of neglect by the government, dismissal with prejudice would be appropriate. But here, there was no showing that the prosecution engaged in such conduct. Dismissal with prejudice is not the only way to show that violations must be taken seriously. Jones has failed to show any material prejudice. The delay in this case, either 216 non-excludable days or 414 non-excludable days, depending on whose calculation is accepted, is very serious and suggests a need for case management better attuned to the Speedy Trial Act. Under other circumstances, such a lengthy delay would warrant dismissal with prejudice. But given the seriousness of the crimes, the government's relative lack of culpability for delay, and Jones' inability to demonstrate prejudice, the court could not say that the district court abused its discretion in dismissing the indictment without prejudice.

(2) In reviewing the denial of a motion to suppress, the court considers the evidence in the light most favorable to the government, accepts factfindings unless clearly erroneous, and the ultimate issue of reasonableness under the Fourth Amendment is renewed de novo.

(3) In order to establish standing, Jones must demonstrate a personal Fourth Amendment interest implicated by the search of the condo. The test is whether the individual, by his conduct, has exhibited a subjective expectation of privacy, and whether that subjective expectation is one that society is prepared to recognize as reasonable. The second prong has not been met where Jones was an invitee and not the owner of the condo. The owner had not granted permission for Jones to use the condo.

(4) The decision to grant a severance is within the sound discretion of the trial court. Joinder of firearm and ammunition status offenses with substantive robbery charges are appropriate under Rule 8(a). Under Rule 14, the trial court nonetheless has discretion to sever. Jones stipulated to a prior felony conviction which shielded the jury from the prejudicial details of his prior activities. The district court issued a limiting instruction. The court did not abuse its discretion in denying the motion to sever.

(5) The court reviews a trial court's limitation on cross-examination for abuse of discretion, and would reverse only if an error affected the substantial rights of the accused. The district court's decision to limit cross-examination was not an abuse of discretion. The court allowed Jones to cross-examine witness Brown, outside the presence of the jury, regarding his history of mental illness and medications. The district court found that Jones had failed to establish any nexus between Brown's history of depressional use of medication, and his ability to perceive or remember events. The district court permitted cross-examination as to consumption of drugs and alcohol. There was no violation of the Sixth Amendment Confrontation Clause.

(6) The court reviews constitutional challenges to a sentence de novo. In reviewing Eighth Amendment proportionality challenges, the courts examine the gravity of the offense and harshness of the penalty, sentences imposed on other criminals in the jurisdiction, and sentences imposed for the same crime in other jurisdictions. Under the Harmelin test, the court looks at the relation of the sentence to Jones' crimes. The court did not find Jones' sentence for commission of five robberies and assorted firearms violations, after multiple convictions for previous armed robberies, to be grossly disproportional.

(7) Under the three-strikes statute, a sentence of life imprisonment is mandated for a person convicted of a serious violent felony, if that person has previously been convicted of two or more serious violent felonies. Jones had previously been convicted of two robberies, and robbery generally qualifies as a serious violent felony. A robbery will not qualify if the defendant establishes, by clear and convincing evidence, that no firearm or other dangerous weapon was used in the offense, and no threat of use of a firearm or other dangerous weapon was involved in the offense, and the offense did not result in death or serious bodily injury. The court reviews de novo an enhanced sentence under the three-strikes statute. "The threat of use" includes a communicative expression to a victim that the defendant would use a firearm. Defendant's coconspirator verbally communicated that a firearm was present. The fact that no gun was actually present does not prevent it from being a threat.

Possession of Firearm by Prohibited Person (18 U.S.C. § 922(g)) - New Class of Prohibited Persons;  Guideline Interpretation - Statute, Rule of Lenity, Commentary;  Firearm Possession (§2K2.1(b)(2)) - Reduction in Offense Level Does Not Require Possession For Own Sporting Purposes, Reduction Appropriate Where Defendant Possesses Firearm For Brother's Sporting Purpose

United States v. Mojica, 99-4131 (May 30, 2000)

Mojica appeals from his 27 month sentence imposed for violating 18 U.S.C. § 922(g)(2). He urges the court erred in holding that §2K2.1(b)(2) does not apply. The circuit reversed.

HELD: 

(1) Section 922(g) was amended to make individuals who had committed certain misdemeanor crimes of domestic violence subject to restrictions on possession of firearms. The guidelines were amended in November 1998 to include this new class of prohibited persons restricted from possessing a firearm under § 922(g)(9). Section 2K2.1(b)(2) provides for a reduction to a base offense level 6 where the crime of possession is associated solely with lawful sporting or collection purposes. The circuit reviews the district court's interpretation of the guidelines de novo.

(2) The guidelines, as criminal statutes, are given their fair meaning in accord with the manifest intent of lawmakers, without adding or subtracting words from the statutory language. The guideline does not expressly limit reduction of base offense level to those situations in which possession or transport is related only to the defendant's own lawful sporting purposes. The intent of the commission is demonstrated in part through commentary. District courts are obliged to follow explanatory application notes, unless they are plainly erroneous, inconsistent with the guidelines, or violate the Constitution or a federal statute. The application note states that lawful sporting purposes are determined by the surrounding circumstances. The note does not require that the defendant have transported or possessed the firearm for his own sporting purposes. The purpose of a specific offense characteristic is to make punishment proportional to the specific illegal conduct of a particular defendant. Mojica established the shotgun was obtained and used solely for lawful sporting purposes by his brother. Under these facts, his possession constituted a benign act associated with a lawful sporting purpose. The circuit's holding is consistent with the Moit decision of the Eighth Circuit. While consideration of the surrounding circumstances related to lawful sporting purposes as a defense to the conviction under § 922(g)(9) is not permitted, consideration of these circumstances as mitigating factors in determining the sentence is appropriate. The guideline is at least facially ambiguous and the rule of lenity applies. The court remanded the case to the district court, since the government contested Mojica's version of the surrounding circumstances.

Instruction - Deliberate Ignorance, Insufficient Evidence, Form of Instruction, Conscious Avoidance

United States v. Delreal-Ordones, 99-2188 (May 30, 2000); (Benjamin A. Gonzales, FPD, Albuquerque, New Mexico)

Ordones was charged with possession with intent to distribute more than a kilogram of methamphetamine. The jury found him guilty and he was sentenced to 121 months imprisonment. The judge gave a deliberate ignorance instruction with regard to whether Ordones had deliberately blinded himself to the fact that methamphetamine was located in the suitcase aboard an Amtrak train.

HELD: 

(1) In reviewing a challenge to a deliberate ignorance instruction based on insufficient evidence, the court views the evidence in the light most favorable to the government. Ultimately, the court reviews the decision to give a deliberate ignorance instruction de novo.

(2) In the opening brief, the defendant urged there was insufficient evidence to support the deliberate ignorance instruction. In the reply brief, he objected to the form of the instruction. The latter is reviewed for plain error. The court found that the omission of language endorsed in the Glick decision did not constitute plain error.

(3) A deliberate ignorance instruction is rarely appropriate because it is a rare occasion when the prosecution can present evidence that the defendant deliberately avoided knowledge. But the district court need not insist upon direct evidence of conscious avoidance. Possession of a large quantity of narcotics is sufficient to establish the element of intent to distribute. A deliberate ignorance instruction is appropriate when a defendant denies knowledge of an operant fact, but the evidence, direct or circumstantial, shows that the defendant engaged in deliberate acts to avoid actual knowledge of that fact. Viewed in the light most favorable to the government, the evidence supports the inference that the defendant acted to deliberately avoid knowledge of the methamphetamine in his suitcase. Defendant's failure to pack his own suitcase, and open it after his shower, infers he was deliberately avoiding knowledge about what the others placed in his suitcase. When he opened the suitcase, he saw detergent spilled all over the inside, but still kept the detergent box in his suitcase. His statements during an interview also give rise to this inference of guilty knowledge.