Downward Departure - Refusal Not Appealable, Distinguished From Downward Adjustment in Offense Level; Role in Offense - Minor Role

United States v. James, 97-1249 (October 2, 1998)

(James P. Moran, FPD, Denver, Colorado)

James was charged with RICO activities in connection with a drug trafficking enterprise. Pursuant to a plea agreement, James plead guilty to that charge and the government agreed to dismiss five additional counts and to consider filing a motion for downward departure based on James' assistance. At sentencing James moved for downward departure based on aberrant behavior, little financial gain, minor participant, and risk of abuse in prison due to health and age. The district court denied this claim on all grounds.

HELD: (1) A denial of a downward departure is not appealable, but where James is actually claiming error of law in sentencing him by refusing the adjustment for minor role, the court has jurisdiction.

(2) In reviewing a role in offense claim under §3B1.2, the court reviews fact findings for clear error and gives due deference to the court's application of the guidelines to the facts. A defendant's role is minor if he was substantially less culpable than the average participant. But if a defendant has received a lower offense level by being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for mitigating role is not ordinarily warranted. Section 3B1.2 n.4. A defendant is not entitled to a mitigating role adjustment where relevant conduct of the conspiracy was not considered in calculating the base offense level.

Appellate Jurisdiction - Interlocutory Order, Injunction; Injunction - Discretion Standard; Federal/State Jurisdictions - Cooperation, Fairness For New Trial

United States v. McVeigh, 98-1247 (October 5, 1998)

Robert Neigh, Tulsa, Oklahoma, Richard Burr, Houston, Texas for McVeigh; and Susan L. Foreman, Michael E. Tigar and Adam Thurschwell for intervenor Nichols.

McVeigh appeals from the district court's June 24, 1998 order rescinding certain restrictions which prevented federal agents from cooperating with state officials investigating the Oklahoma City bombing. After the completion of McVeigh's and then Nichols' trials, the district court received a letter from the state trial judge conducting the grand jury proceedings in Oklahoma. The judge asked whether previous orders by the district court prohibiting extra-judicial statements by attorneys and support personnel would prevent federal assistance in the state proceedings. The government moved for removal of any restrictions which would prohibit cooperation with state authorities. The district court granted the government's request with the exception that the government should not disclose any documents, objects or information provided by the defendants through reciprocal discovery.

HELD: (1) This is an interlocutory order, even though the trials are finished. Because the order had the effect of modifying a previously imposed injunction, the court has jurisdiction under 28 U.S.C. § 1292(a)(1). That statute requires that the district court order must have the practical effect of granting or denying injunctive relief, must be one which will result in serious or irreparable consequences if executed, and must be a directive which can be challenged effectively only through immediate appeal

(2) The court's decision to modify an injunction is reviewed for abuse of discretion-an arbitrary, capricious or manifestly unreasonable judgment. Rule 6, F.R.Cr.P. contemplates cooperation between state and federal authorities. The district court order complies with federal rules. In the event McVeigh or Nichols receive a new trial, there are safeguards to ensure fairness.

Appellate Jurisdiction - Standing to Appeal Even Though Released From Prison, Raise Sentencing Issues; Firearm Enhancement - Upon Vacation of § 924(c) Conviction; Acceptance of Responsibility - Fact Question, Two or Three Points; Resentencing - Guidelines In Effect at Time, Ex Post Facto

United States v. Easterling, 97-6382 (October 7, 1998)

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

Easterling plead guilty to methamphetamine distribution and a § 924(c) charge. Based on his post-conviction motion, the district court vacated the § 924(c) conviction, and resentenced Easterling on the § 846 count, enhancing the sentence by two levels for possession of a firearm. Easterling objected, arguing he had fully discharged his § 846 sentence, and he should have received a three-level reduction for acceptance of responsibility rather than two levels.

HELD: (1) Even though Easterling will be released from prison and begin serving his term of supervised release, favorable resolution of this appeal could reduce that term. Therefore, he has standing.

(2) The question of whether the district court could resentence is reviewed de novo. Without the underlying drug conviction there would be no § 924(c) conviction. Since the underlying drug offense and the § 924(c) charges should be treated in the aggregate, it was permissible for the court to enhance the § 846 sentence even though it had been discharged.

(3) When a court vacates a sentence, the resentencing is governed by guidelines in effect at the time of resentencing subject to the ex post facto clause. The district court erroneously thought it could only reduce the sentence by two points rather than three, so vacation of the sentence is necessary.

(4) Under §3E1.1(b), Easterling may only earn the third point sentence reduction if he can demonstrate that he timely provided complete information to the government concerning his offense or notified authorities of his intention to plead guilty.

Sufficient Evidence - Review Standard, Armed Bank Robbery Elements, Use or Carry Firearm Elements, Aid and Abet Elements, Type of Evidence; Witnesses - Confrontation, Limit Cross-Examination, Harmless Error; Acceptance of Responsibility; Instruction - Involuntary Intoxication, Theory of Defense; Involuntary Intoxication - Elements of This Defense, Not Available If Knowing Ingestion of Illegal Substances

United States v. Bindley, 97-3250 (October 13, 1998)

(Charles D. Dedmon, FPD, Topeka, Kansas)

HELD: (1) The court reviews de novo whether the evidence is sufficient, and views the evidence in the light most favorable to the government, asking whether a reasonable jury could find a defendant guilty beyond a reasonable doubt. Bindley was charged with armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). This charge requires the government to prove 1) money was taken from the custody of the bank by force and violence or intimidation, 2) during the taking, employees were either assaulted or their lives put in jeopardy by use of a dangerous weapon or device, and 3) the deposits were insured by the FDIC. Bindley was also charged with use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). The government has to prove a crime of violence was committed for which Bindley could be prosecuted in a court of the United States, and during and in relation to commission of that crime he knowingly used a firearm. Co-defendant Walters' actions satisfied the essential elements of the crime. The question is whether Bindley's conduct satisfies the elements for aiding and abetting. That crime requires the government to prove Bindley 1) knew the crimes charged were to be committed, 2) knowingly and willfully did some act for the purpose of aiding commission of the crimes, and 3) acted with the intention of causing the crimes to be committed. The evidence was sufficient. No circuit appears to require that the FDIC insurance element be satisfied by a particular type of witness. The bank teller's testimony was sufficient.

(2) At trial, both sides presented expert testimony concerning Bindley's mental status. The government presented rebuttal evidence from Dr. Harold Voth, who rejected the conclusions of Bindley's psychologist that he suffered from schizophrenia and diminished capacity. The district court denied Bindley's request to introduce letters written by Voth and defense counsel reflecting a personal dispute about legalization of marijuana. The court reviews de novo whether Sixth Amendment confrontation rights were violated and whether any violation was harmless. The trial court retains broad discretion to limit cross examination to prevent undue prejudice and confusion. The jury had sufficient information to properly appraise Voth's motives and bias, because the jury was already aware that Voth disliked drugs, he had spent part of his military career working to reduce drug usage, and Voth and defense counsel had a public dispute over legalization of marijuana. Even if this were error, it is subject to harmless error analysis.

(3) The district court has broad discretion to determine whether to award a sentence reduction for acceptance of responsibility and the court will not disturb that decision absent clearly erroneous findings. The defendant bears the burden of establishing entitlement to a reduction. Bindley did not truthfully admit his involvement in the crimes and was not entitled to a reduction for acceptance of responsibility.

(4) Bindley requested an involuntary intoxication instruction, claiming the marijuana cigarette he smoked must have been laced with some other drug. A defendant is entitled to a theory of defense instruction that is legally justified and supported by sufficient evidence for a jury to find in his favor. The court reviews de novo whether a district court commits reversible error in failing to submit a requested theory of defense instruction. The defense of involuntary intoxication has received little attention from the federal courts but has been recognized by state courts. The defense has been recognized 1) where intoxication was caused by the fault of another or by innocent mistake on the part of the defendant, 2) where a defendant unknowingly suffers from a psychological or psychological condition that renders him abnormally susceptible, or 3) where an unexpected intoxication results from a medically prescribed drug. The key component is lack of culpability on the part of the defendant in causing the intoxication. There are no cases where the defense is recognized in a situation where the defendant has knowingly ingested an illegal substance. The conduct that resulted in Bindley's intoxication was not innocent. Marijuana is not subject to any governmental standard which would insure potency or purity. It is not at all uncommon to find marijuana cigarettes laced with PCP.

Habeas Corpus (28 U.S.C. § 2254); Exhaustion of State Remedies - Futility; Ex Post Facto - Good Time Credits; Good Time Credits - Deduction From Sentence or Release on Parole; Retroactivity - Application of State Statutory Interpretation, Foreseeability

Fultz v. Embry, 97-1336 (October 15, 1998)

This appeal is from denial of a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner claims he has discharged his Colorado sentence, and that state statutes governing execution of sentences, in effect at the time of his offense, provided good time and earned time credits would count toward such discharge. He urges that the Colorado Supreme Court's subsequent interpretation as permitting the credits to count only toward parole eligibility violates the ex post facto clause. Petitioner admits he has not exhausted state remedies, but claims exhaustion would be futile in light of the Colorado courts' uniform rejection of similar arguments. The district court agreed that exhaustion would be futile and addressed the merits, concluding petitioner was not entitled to relief.

HELD: (1) To fall within the ex post facto prohibition, a law must be retrospective, that is, apply to events occurring before its enactment, and it must disadvantage the offender by altering the definition of criminal conduct or increasing the punishment. Colorado statutes dealing with good time and earned time credits and parole were revised in 1979 and 1984. It was not until 1989 that the Colorado Supreme Court issued its first opinion that the statutes were only intended to establish a mandatory date of release on parole. Earlier, good time and earned time credits were deducted from the sentence imposed. The circuit was bound by the Colorado Supreme Court's construction of state law. But whether that construction offends the Federal Constitution is a matter subject to plenary review. The question is whether petitioner's due process rights would be violated by retroactively applying the statutory interpretation set forth by the Colorado Supreme Court. The test for determining whether the retroactive application of a judicial decision violates due process is essentially one of foreseeability. The Colorado Court of Appeals has considered this question and held the Colorado Supreme Court's holdings were not so unforeseeable as to deprive the defendant of due process.

Habeas Corpus (28 U.S.C. § 2241) - Execution of Federal Sentence; Good Time Credits - Parole Regulations Interpreting Statutes

Patterson v. U. S. Parole Commission, 98-1076 (October 20, 1998)

Patterson, an inmate at the U.S. Penitentiary in Florence, Colorado, appeals from dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. He was arrested for parole violations and his parole was revoked. The hearing examiner gave him credit for time spent on parole and time in custody after the arrest, but did not give petitioner credit for good time earned pre-parole. 28 C.F.R. § 2.35(b) provides that good-time credit earned prior to conditional release has no effect after revocation of parole.

HELD: (1) Before the enactment of C.F.R. § 2.35, this circuit had upheld the forfeiture of good time credit after revocation of parole. Other circuits have held that § 2.35 does not conflict with the governing statutes, 18 U.S.C. § 4163-4165, regarding good time credits. Instead, the circuit held that the regulation is based on a permissible construction of the good time statutes.

Motion to Vacate Sentence (28 U.S.C. § 2255); Bailey Challenges to § 924(c) Conviction After Guilty Plea; Procedural Bar - Cause, Actual Innocence, Guilty Plea Admits Underlying Drug Offense

United States v. Powell, 97-1449 (October 20, 1998)

(James P. Moran, FPD, Denver, Colorado)

This is an appeal from denial of a § 2255 motion dealing with a Bailey issue. In late 1994, Powell agreed to plead guilty to the § 924(c) charge and was sentenced to a mandatory five year sentence and the government agreed to dismiss other counts. Bailey defined "use" much more narrowly. In June 1996, Powell moved for vacation of his conviction in light of Bailey. The government argued that Powell should be held to the bargain because he benefited from it. The district court agreed. The court also found Powell had procedurally defaulted unless he could show cause and prejudice. The court concluded there was a factual basis to support the conviction and that Powell substantially benefited from the plea bargains.

HELD: (1) The Supreme Court, in its Bousley decision, addressed Bailey challenges to § 924(c) convictions following guilty pleas. Bousley recognized that a guilty plea to § 924(c) may be constitutionally invalid as not knowing and voluntary, where the defendant is misinformed about the elements of § 924(c) offense.

(2) Where this plea was not challenged on direct appeal, it could only be challenged collaterally if the defendant falls within an exception to the procedural default rule. The mere fact that Bailey altered settled law did not make the argument so novel as to constitute cause. Bousley said that another way to overcome procedural default would be actual innocence, meaning factual rather than legal innocence. Although the district court did not address this, the record is sufficiently developed that the circuit could conclude Powell could not meet his burden of proving actual innocence of the drug trafficking charge which had been dismissed as part of the plea bargain. In his guilty plea to a § 924(c) violation, he admitted the underlying drug offense.

Guidelines - Review Standard, Word "Offense" Includes Conviction and Relevant Conduct, Reasonable Foreseeability; Visual Depiction of Minors in Sexually Explicit Conduct; Role in Offense - Leader or Organizer, Clear Error Standard

United States v. Tagore, 97-6133 and 6136 (October 23, 1998)

Tagore plead guilty to receiving and distributing visual depictions of minors engaged in sexual explicit conduct, and possessing visual depictions of minors engaged in sexually explicit conduct, all in violation of 18 U.S.C. § 2252(a)(2), (a)(4), and (b)(1). This case involves on-line Internet chat rooms involving child pornography.

HELD: (1) The court reviews questions of law regarding application of the guidelines de novo, and underlying fact findings for clear error. The guideline for a violation of § 2252 is U.S.S.G. §2G2.2 which has a cross-reference to §2G2.1 if the offense involved causing, transporting, permitting or seeking by notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, and if the offense level calculated under §2G2.1 is greater than that determined under §2G2.2. The key issue is whether the offense involved sexual exploitation of a minor for purposes of producing a visual depiction under the first prong of §2G2.2(c)(1). The word "offense" includes the offense of conviction and all relevant conduct. Thus, the term, when used in a cross-reference, includes the conduct of the defendant and certain conduct of participants in the criminal activity. The only exception is where relevant conduct is otherwise specified, meaning if a specific guideline contains a more explicit instruction. Interpreting the cross-reference, the district court considered conduct of Tagore's co-conspirators. The court interprets the guidelines as if they were a statute or court rule. Where the language is clear and unambiguous, it must be followed, unless it would lead to an absurd result contrary to clear legislative history. Relevant conduct is not limited to conduct in which he personally participated.

(2) The district court's finding that co-defendant conduct was reasonably foreseeable is not clearly erroneous.

(3) The court reviews for clear error whether a defendant is a leader or organizer under §3B1.1. The gravamen of the enhancement is exercise of control over other participants, or the organization of others for the purpose of carrying out the crimes. An enhancement is appropriate if the defendant was either a leader or an organizer. Appellant acted as an organizer of the conspiracy.

Guilty Plea (Rule 11) - Consequences, Concurrent Sentencing, Court Participation; Ineffective Assistance of Counsel - Direct Appeal or Collateral Review

United States v. Carver, 97-1248 (October 27, 1998)

HELD: (1) Whether a federal sentence runs consecutive or concurrent with a state sentence is not considered a direct consequence of the plea. Therefore Rule 11 was satisfied and the defendant entered his plea knowingly and voluntarily.

(2) Except in the rare case where an ineffectiveness of counsel claim is fully developed, such claims should be asserted in a § 2255 motion and not on direct appeal.

(3) The district court's comments did not rise to the level of participation in plea discussions such as would violate Rule 11(e). The rule does not prevent the sentencing judge from questioning the defendant regarding the terms, consequences, and acceptance of the plea agreement, or from providing the defendant with information relating to these matters, once the parties have concluded their agreement and the prosecutor has laid it out in open court. The defendant had entered into a plea agreement and changed his plea of guilty well before the problematic interchange with the district court judge which was based on the defendant's own vacillation at sentencing. The judge's comments were prompted by an attempt to resolve inconsistent positions taken by the defendant during the sentencing, and were related to whether or not the defendant wished to withdraw his already negotiated plea agreement.

Habeas Corpus (28 U.S.C. § 2254) - Review Standard of Federal District Court Ruling; Procedural Default - Independent and Adequate State Ground, Cause and Prejudice, Appeal Guilty Plea, Ineffective Assistance of Counsel; Ineffective Assistance of Counsel - General Need to Develop Facts and For New Counsel, Mixed Question of Fact and Law, Deficient Performance and Prejudice

Hickman v. Spears, 97-6008 (October 27, 1998)

(James P. Moran, FPD, Denver, Colorado)

This is an appeal from denial of a habeas corpus petition pursuant to 28 U.S.C. § 2254. Hickman entered a plea of guilty to unlawful possession of marijuana, second and subsequent offense. He had four prior felony convictions, three non-drug related. He was sentenced as a habitual criminal and received the minimum 20 year sentence. He did not move to withdraw his plea, or attempt to perfect a direct appeal. Later, he filed a motion for post conviction relief claiming ineffective assistance and illegal sentence. The state courts denied his application on procedural default grounds. Hickman then filed a federal petition for habeas corpus relief.

HELD: (1) A federal court will not consider issues defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for decision. For the state ground to be adequate, it must be strictly or regularly followed and applied even-handedly to all similar cases.

(2) The appellate court reviews the district court's conclusions of law de novo and accepts findings of fact unless clearly erroneous.

(3) Under Oklahoma law, a defendant whose conviction is based on a guilty plea must pursue an appeal to the Court of Criminal Appeals by petition for writ of certiorari. To commence obtaining a writ of certiorari, the petitioner must file an application to withdraw the plea within 10 days of the judgment and sentence, and in any event, he must file a petition for writ of certiorari within 90 days of conviction. Failure to follow these procedural requirements prevents any further post-conviction relief, unless petitioner shows a sufficient reason for the default. This constitutes an independent and adequate state procedural ground as to his sentence.

(4) However, state procedural default with respect to petitioner's ineffective assistance of counsel claim requires closer review. Ordinarily, the failure to raise an ineffective assistance claim on direct appeal does not preclude federal habeas review, even if that is deemed procedural default under state law, because of the general need for additional fact finding on the claim, and the need to allow petitioner to consult with different counsel on appeal in order to obtain an objective assessment of trial counsel's performance. The short time frame in which petitioner had to perfect a certiorari appeal under Oklahoma law did not give him sufficient opportunity to discover and develop his ineffective assistance of counsel claim. The procedural rules are inadequate for denying the ineffective assistance of counsel claim.

(5) The procedural bar rule does apply to the illegal sentence claim, and petitioner must show cause and prejudice or a fundamental miscarriage of justice. Determinations of cause and prejudice and fundamental miscarriage of justice are matters of federal law. Attorney error amounting to constitutionally ineffective of counsel constitutes cause for procedural default. An individual's Sixth Amendment right to effective assistance of counsel is limited to the first appeal of right. Although a guilty plea appeal is technically referred to in Oklahoma as a certiorari appeal, Oklahoma courts have always treated this as an appeal of right. Thus, Hickman was entitled to effective counsel during the period available for appeal of his conviction. The court had to determine whether a petitioner has shown cause concurrently with the merits of his ineffective assistance of counsel claim because the same legal standards apply.

(6) A claim of ineffective assistance of counsel is a mixed question of law and fact reviewed de novo. Petitioner must show deficient performance and prejudice. A reasonable and competent counsel might have concluded that, based on lack of legal authority and the plain language of the Habitual Criminal Act (HCA), Hickman's sentence was proper. The circuit rejected the argument that the Oklahoma statute prevents marijuana possession offenses from being enhanced. Instead the plain language of the HCA makes it applicable to all felonies. The HCA does not define felony. Oklahoma courts have concluded that an offense categorization under provisions of law outside the state's penal code may be used when making the determination as to what constitutes a felony under the HCA. Petitioner's second offense is a felony under Oklahoma law. Thus, counsel's failure to object to enhancement of the sentence did not amount to constitutionally deficient performance. Therefore the ineffectiveness claim is without merit. Based on these same considerations, petitioner has failed to show cause for procedural default as to his illegal sentence claim.

Downward Departure - Non-Violent Offenses While Suffering From Significantly Reduced Mental Capacity (§5K2.13), Bank Robbery

United States v. Valdez, 97-2316 (October 30, 1998)

Valdez robbed a bank using a hand-written note that said he had a gun. He was charged with one count of bank robbery in violation of 18 U.S.C. § 2113(a). At sentencing, he moved for a downward departure under §5K2.13, referencing commission of a non-violent offense while suffering from significantly reduced mental capacity. The district court denied the downward departure where the facts of this case demonstrated a violent offense.

HELD: (1) The court reviews de novo legal interpretations of the guidelines and fact findings for clear error. The court concluded that Valdez was convicted of a crime which required the use of force and violence and intimidation, and was not eligible for a downward departure under §5K2.13. The majority of circuits refer to the term "crime of violence" under §4B1.2 in defining "non-violent offense" in §5K2.13. They have held that a defendant convicted under § 2113(a) is never eligible for a downward departure. The Tenth Circuit agreed with the Third Circuit in Askari, that the elements required to support a bank robbery under § 2113(a) necessarily preclude any finding that the offense was non-violent for purposes of a downward departure, in light of the terms "by force and violence, or by intimidation."