Admission of Evidence - Discretion Standard;
Instructions - Innocent Misrecollection; Knowledge That Item Possessed is Firearm;
Failure to Object - Plain Error
United States v. Marshall, 01-5147 (October 21, 2002)
(Barry L. Denybery, FPD, Tulsa, Oklahoma)
HELD: (1) Evidentiary rulings are reviewed for abuse of discretion. At trial, the police officer testified he saw Marshall pulling and tugging at his waistband as he fled down the street. Defense counsel attacked the officer's credibility with the incident report that contained no mention of this. The officer stated that he did include the reference to this observation in his arrest affidavit. Thus, there were two separate reports - - the arrest affidavit, admissible as a prior consistent statement, and the incident report. Because defense counsel placed such emphasis on the omitted reference from the incident report, the district court decided to admit both reports to avoid jury confusion. The district court did not clearly err in admitting the incident report. Even assuming the incident report represented a prior inconsistent statement relative to the arrest affidavit, there was a useful purpose to its introduction.
(2) The adequacy of a jury instruction is reviewed de novo for plain error when no objection to the jury instruction is made at trial. The district court did not commit plain error by instructing the jury that innocent misrecollection, like a failure of recollection, is not an uncommon experience.
(3) The court also instructed the jury that the government must prove beyond a reasonable doubt that the defendant had knowledge that what he was possessing was a firearm. Marshall urges that the instruction presupposed possession which was the only aspect of the charge at issue. The court reviewed the instructions as a whole and noted another instruction stated that possession is at issue. Giving the possession instruction gave the circuit pause, but it held that it was not plain error.
Deportation - Civil Not Criminal, Expedited Proceeding;
Illegal Reentry - Challenge Prior Deportation;
Waiver - Written, Knowing and Voluntary
United States v. Rangel De Aguilar, 01-3153 (October 22, 2002)
(Timothy J. Henry, FPD, Wichita, Kansas)
Rangel was charged with illegal reentry after prior removal. She moved to dismiss, contending the fact of her prior deportation should not be allowed as evidence because the expedited administrative procedure had violated her right to due process. The district court denied the motion. Rangel subsequently pleaded guilty to the charges in the indictment and reserved the right to appeal. The circuit affirmed.
HELD: (1) The procedures for expedited deportation are set out in 8 U.S.C. § 1228(b)(4). To challenge the validity of a prior INS proceeding, a party must satisfy a three-part standard in 8 U.S.C. § 1326(d). The government does not dispute Rangel's contention that administrative immigration courts do not have authority to adjudicate constitutional claims challenging an underlying deportation order. The government claims that Rangel must demonstrate prejudice in a collateral challenge to a deportation order. Rangel presented no evidence that the waiver she gave was not knowing and voluntary, or that she had a defense to the criminal charge underlying her deportation.
(2) Whether the district court erred in failing to dismiss the indictment due to allegations of due process violations is a mixed question of fact and law reviewed de novo. Rangel's appeal is based on the notion that waivers of rights in immigration removal proceedings should be subject to the same constitutional due process safeguards as mandated in other contexts. But deportation is a civil action, not a criminal one. For example, in Lopez-Mendoza, the Supreme Court held that the exclusionary rule does not apply in deportation proceedings. The circuit was not persuaded that the expedited deportation procedure was fundamentally unfair, even though the waiver was not made before a neutral magistrate. In addition, the Constitution does not require a record more substantial than that created in the course of this matter, which consisted of written proof of waiver. The circuit did caution that a party may contest a waiver, but Rangel offered no evidence that the agent coerced her into waiving her rights, or that she did not understand the nature of the rights available to her, or that the INS agent's characterization of those rights was misleading.
Motion to Suppress - Review Standard;
Traffic Stop - Terry Reasonableness, Traffic Violations;
Search - Consent, Scope
United States v. Ramstad, 00-3407 (October 24, 2002)
Ramstad entered a conditional plea to marijuana charges, reserving his right to appeal the denial of his motion to suppress. He appealed and this court had remanded for further factfinding, 219 F.3d 1263 (10th Cir. 2000). On remand, the district court again denied the suppression motion, and this time the circuit affirmed.
HELD: (1) Temporary detention of individuals during a stop of an automobile constitutes a seizure. Routine traffic stops are akin to investigatory stops under Terry v. Ohio. A traffic stop is reasonable if the officer has either probable cause to believe a traffic violation has occurred, or reasonable articulable suspicion that the particular motorist violated any one of a multitude of traffic and equipment regulations.
(2) When reviewing the denial of a motion to suppress, the circuit accepts factual findings of the district court unless clearly erroneous, and reviews the ultimate determination of reasonableness de novo.
(3) An arrest or stop will be constitutional if an objectively valid basis for carrying out the stop exists, even if the ground cited by the officer for justifying the stop is unconstitutional.
(4) Section 8-138a, has been interpreted by the Kansas court to require that out-of-state vehicles be properly licensed in their home state. The circuit rejected Ramstad's argument that the Kansas statute applies to personal driver's licenses as opposed to licensed vehicles. Section 8-138a is surrounded by other statutory provisions that govern a vehicle's registration, license plates and tags. California law required both a front and rear license plate for Ramstad's vehicle. Therefore, the circuit concluded that the traffic stop for failure by Ramstad to display the front California plate was objectively reasonable and the stop was legal.
(5) The circuit agreed with the district court that Ramstad's consent to search was knowingly and voluntarily given.
(6) The scope of the search is generally defined by its expressed object and is limited by the breadth of the consent given. The defendant never objected to the duration of the search and never demanded to be present in the vehicle during the search.
Motion to Suppress - Review Standard;
Abandonment - Police Ruse;
Drug Checkpoint;
Guilty Plea - Waives Jurisdictional Defects
United States v. Flynn, 01-7065 (October 25, 2002)
Flynn entered a conditional guilty plea and reserved his right to appeal the denial of a motion to suppress.
HELD: (1) The court reviews the district court's findings of fact on a motion to suppress under the clearly erroneous standard of review, and reviews de novo the ultimate question of reasonableness.
(2) As to the package of methamphetamine dropped from the car, the Fourth Amendment allows for a warrantless seizure and search of abandoned property. In order to be effective, abandonment must be voluntary. An abandonment is involuntary if it results from a violation of the Fourth Amendment, but police pursuit or investigation does not of itself render the abandonment involuntary. Flynn claims he discarded the property due to the illegal operation of a narcotics checkpoint, citing City of Indianapolis v. Edmond (2000). But Flynn never reached a drug checkpoint, and discarded the property prior to being stopped by police. Up to that point, he acted voluntarily in response to a ruse established by the police, that is, signs warning of a fictitious checkpoint on I-40. The posting of signs to create a ruse does not constitute illegal police activity. The creation of a ruse to cause the defendant to abandon an item is not illegal. Police may stop a car when they have developed a reasonable individualized suspicion of wrongdoing. When the police discovered that the package thrown from the car contained drugs, they had a reasonable individualized suspicion sufficient to stop.
(3) By entry of a voluntary guilty plea, Flynn waived all non-jurisdictional defenses, such as lack of evidence that the firearm to which he pleaded guilty had been carried during and in relation to the underlying crime.
Upward Departure - Discretion Standard, Four-Step Review, Reasonableness of Degree, Remand
United States v. Sims, 01-6428 (October 29, 2002)
Sims pleaded guilty to 20 counts of making, uttering, and possessing counterfeit traveler's checks. The district court departed upward, determining that her criminal history category did not adequately reflect the seriousness of her criminal history. Sims appealed, and the circuit reversed and remanded. The presentence report set Sims' offense level at 8, with criminal history category VI for a range of 18 to 24 months. The government moved for an upward departure claiming that her criminal history category did not adequately reflect the seriousness of her past conduct. Because Sims was already at criminal history level VI, the government requested a three level upward departure in offense category, resulting in a guideline range of 27 to 33 months. Instead, the court extended Sims' criminal history category to a hypothetical level IX and calculated a sentencing range of 36 to 42 months, a range approximately three levels above the departure sought by the government. The court sentenced Sims to 42 months in prison.
HELD: (1) The court reviews a departure decision under an abuse of discretion standard. The court considers whether the factors the court relied on are permissible departure factors, whether those factors remove the defendant from the heartland of the guideline, whether the record supports the factual basis underlying the departure, and whether the degree of departure is reasonable. Sims takes issue only with the reasonableness of the degree of departure.
(2) By artificially extending Sims' criminal history beyond category VI, the district court used an approach that constitutes an incorrect application of the guidelines, and failed to implement the 1992 amendment to policy statements in §4A1.3, which provides that a district court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in category VI, until it finds a guideline range appropriate. See United States v. O'Kane, 52 F.3d 828, n.5. In addition, the district court made an erroneous mathematical assumption, assuming that criminal history categories go from one level to the next in increments of six months. The government concedes that the district court's calculation was both mathematically incorrect and contrary to the method §4A1.3 mandates.
(3) When a district court bases its departure upon invalid factors, a remand is required unless the reviewing court determines the district court would have imposed the same sentence absent reliance on the invalid factors. Because the district court relied on a flawed and improper method, the circuit could not be certain that the district court would have reached the same result upon application of the correct method, and therefore reversed and remanded.
Motion to Suppress - Review Standard;
Seizure - Police Request Identification, Assertion of Authority and Submission, Reasonable Suspicion, Frisk and Reach Inside;
Drugs Near School - Knowledge Near School Not an Element;
Instructions - Lesser Included Offense;
Apprendi - Prior Convictions
United States v. Harris, 01-2027 (October 30, 2002)
(Peter E. Edwards, FPD, Las Cruces, New Mexico)
Harris was convicted of possession with intent to distribute cocaine base within 1000 feet of a school. Harris had been convicted of two prior felony violations of possession of a controlled substance, and received a mandatory minimum sentence to be followed by a 10 year period of supervised release.
Officer Allen approached the defendant and his acquaintance at the car wash, and from a distance of 6 to 8 feet, asked for their identification. Both men ignored Officer Allen and continued walking. When the officer was within two or three feet of them, he again asked for identification. They ignored him and continued walking. Defendant passed Officer Allen, turned around, and began walking backwards with his hands in his pockets. Officer Allen ordered him to remove his hands from his pockets. When the defendant refused, Officer Allen approached him, removed his hands from his pockets, and escorted him to the front of the police car.
HELD: (1) When reviewing a district court's denial of a motion to suppress, the circuit accepts the district court's factual findings unless they are clearly erroneous. The court may consider evidence introduced at the suppression hearing as well as any evidence properly presented at trial. The ultimate question of reasonableness is reviewed de novo.
(2) The defendant was not seized until the officer removed his hands from his pockets and escorted him to the police car. A seizure does not occur simply because a police officer approaches an individual and requests identification. Ultimately, a seizure requires either the use of physical force by the officer, or submission by the individual to the officer's assertion of authority. A police officer's assertion of authority without submission by the individual does not constitute a seizure.
(3) The question is whether Officer Allen had reasonable suspicion that the defendant might be involved in criminal activity prior to the seizure. Based on two phone calls made by a Dairy Queen employee to the Sheriff's Office, Officer Allen had information that two men, wearing dark clothing, had been smoking narcotics in the Dairy Queen parking lot and were heading toward the car wash. When he approached the area, Officer Allen saw two men wearing dark clothing walking toward the car wash. That was when Officer Allen approached the two men and requested identification. When he requested identification for a second time, he smelled the odor of burnt marijuana emanating from the defendant. The defendant compares the phone calls to the anonymous tipster's call in Florida v. J.L., 529 U.S. 266 (2000), but the circuit found the facts in this case distinguishable. In this case the caller was not anonymous, and by the time of the seizure, the officer had smelled the odor of marijuana.
(4) Harris also says that the police did not have justification for the frisk. Nervous, evasive behavior is a factor. But more importantly, the defendant refused to take his hands out of his pockets when requested to do so. Therefore, the officer had reasonably suspicion to justify the frisk.
(5) When Officer Allen ordered the defendant to assume the protective frisk position, the defendant began refusing to separate his left and right feet. Given this, the officer began patting down his left leg, where he felt a hard object. He lifted up the defendant's pant leg and saw a tightly wrapped saran-wrap package in the boot. Still unsure of what the object was, the officer reached inside the boot, at which time the defendant kicked the officer and started to run. The saran-wrapped package was later found to contain cocaine base. Terry permits a law enforcement officer to conduct a frisk of outer clothing that is reasonable designed to discover guns and other weapons, and if the officer discovers what he believes to be a weapon, he may reach inside the suspect's clothing and remove it.
(6) 21 U.S.C § 860(a) is an offense that enhances the penalty for any person who violates § 841 or § 856 by distributing, possessing with intent to distribute, a controlled substance in or on, or within 1000 feet, of a school. The court had instructed the jury that a defendant does not have to know that he was on or within 1000 feet of a school. The circuit reviewed the statute de novo. Five circuits have adopted a broad reading of § 860(a), holding that the government need only prove that the defendant possessed illegal drugs within 1000 feet of a school and intended to distribute them somewhere. The circuit adopted the reasoning of the other circuits. Section 860(a) does not have a mens rea requirement. The plain language of the statute supports the holding. The rule of lenity does not apply, absent an ambiguity.
(7) The court reviews the district court's decision as to whether there is sufficient evidence to warrant a lesser included offense instruction for abuse of discretion. The evidence at trial included defendant's admission that he intended to distribute cocaine base. Such an admission precludes the circuit from finding that a rational jury could have acquitted the defendant on the charged offense and convicted him of simple possession. In addition, the quantity of cocaine base seized was such that no rational jury could infer that the defendant possessed the drugs for personal use.
(8) The circuit rejected the argument that § 860 is unconstitutional, citing Pompey, 264 F.3d 1176 (10th Cir. 2001).
(9) The circuit also rejected the argument that, under Apprendi, the government had to plead and prove the prior felony drug convictions.
Downward Departure - Authority to Depart, Bases, Form I-294 Given to Deported Aliens;
Appellate Jurisdiction - Refusal to Depart;
Entrapment-By-Estoppel - Disparity Between Form I-294 and Statutory Maximum;
Ex Post Facto Clause
United States v. Miranda-Ramirez, 01-4096 (October 31, 2002)
Miranda challenges the refusal to depart downward, when sentencing him for illegally reentering the United States following deportation for an aggravated felony.
HELD: (1) Ordinarily, a district court's refusal to exercise its discretion and depart downward from the sentencing guidelines is not appealable. Review is only permitted in the rare circumstance when the district court states it does not have authority to depart from the sentencing guideline range for the entire class of circumstances proffered by the defendant. Ambiguous statements by district court judges must be treated as though the judge was aware of his authority to depart. In this case, the statements of the district court demonstrate that it believed it lacked legal authority to depart, based on Miranda's reliance on the language in Form I-294.
(2) A district court may depart where there is an aggravating or mitigating circumstance not adequately taken into consideration by the Commission. Some circuits have concluded that the Commission did not take into consideration the situation surrounding the issuance of Form I-294 to deported aliens when formulating the guidelines. Other circuits have concluded that a departure based upon Form I-294 is inconsistent with the goals of the guidelines. The Tenth Circuit held that the district court's determination that it lacked authority to downward depart based upon the circumstances of Miranda's reliance upon Form I-294 was proper.
(3) Regardless of inaccuracies in Form I-294, it was unreasonable for Miranda to assume that the relative statutes would not be amended. Had Miranda contacted the Consular Office for instructions about reentry, the error could have easily been corrected. In a prior case, the circuit concluded the discrepancy between the INS Form and the statutory maximum term of imprisonment did not violate due process. The entrapment-by-estoppel defense does not apply, because the INS properly did inform the defendant that any subsequent reentry without permission would constitute a felony.
(4) Finally, Miranda argues, that because the INS Form advised him that a violation of § 1326 carried a potential two-year term and he was sentenced to 46 months, there was an unfair increase in punishment, violating the Ex Post Facto Clause. But the Ex Post Facto Clause bars only retrospective application of laws that materially disadvantage a defendant. Section 1326(b)(2) was amended in 1994 to increase the maximum penalty to 20 years for illegal re-entry of an alien removed subsequent to a conviction for commission of an aggravated felony. This was in effect at the time of Miranda's arrest in 2000. Therefore, application of the statute to Miranda's conduct is not retrospective and does not violate the Ex Post Facto Clause.