Motion to Suppress - Review Standard; Appellate Review - Clearly Erroneous Defined, Interpretation of Law; Arrest - Probable Cause; Admission of Evidence - Discretion Standard, Legal Question, Competency Test Results; Competency - Test Results, Mental Defense At Trial
United States v. Vazquez-Pulido, 97-2238 (September 1, 1998)
Vazquez was convicted of drug related offenses. He appeals the denial of his motion to suppress evidence, and the ruling that the government could cross-examine his expert witness.
Vazquez' counsel had moved for a competency evaluation, after which he was found competent. At trial, Vazquez called a psychiatrist who testified that Vazquez suffered from depression, and a psychosis which probably existed on the day of his arrest, and that Vazquez could not form the specific intent required to commit the crimes charged. The government cross examined the doctor, based on tests generated during the competency evaluation. The district court allowed this, concluding that such questions were proper, so long as the government did not refer to Vazquez' competency to stand trial.
HELD: (1) When reviewing the denial of a motion to suppress, the court considers the evidence in the light most favorable to the government, and accepts fact findings unless they are clearly erroneous. The ultimate determination of reasonableness under the Fourth Amendment is reviewed de novo. A warrantless arrest must be supported by probable cause. The court looks to the totality of the circumstances.
(2) A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. The district court's finding as to ownership of the vehicle was not clearly erroneous.
(3) Mere association with someone engaged in criminal activity does not, without more, give rise to probable cause. The totality of the circumstances, including Vazquez' relationship to his brother, constituted probable cause.
(4) The court reviews evidentiary rulings for abuse of discretion. When the issue is that the district court erred in interpreting the law, review is de novo. The court refused to adopt a per se rule, making all test results arising from pretrial competency evaluations inadmissible at trial. The statutory scheme does not forbid the use of competency tests. Such tests may be relevant to mental capacity to commit the crime. The decision should be made on a case by case basis for relevance, prejudice or confusion. Identical tests may be used to determine mental competency and capacity to commit the crime. Information may be used even though the psychological examination is compelled. The court recognized defense counsel may face a dilemma in deciding whether to move for a competency evaluation, given that the results of such tests can be used to rebut a mental defense at trial.
Motion to Suppress - Review Standard; Arrest - Probable Cause, Search Incident To
United States v. Anchondo, 97-2305 (September 1, 1998)
Anchondo was indicted on drug charges. His motion to suppress was denied and he entered a conditional guilty plea.
HELD: (1) When reviewing a district court's ruling on a motion to suppress, the court accepts fact findings unless clearly erroneous. The ultimate conclusion of whether the Fourth Amendment allowed a particular stop is a legal determination reviewed de novo.
(2) A warrantless search preceding an arrest is a legitimate search incident to arrest, as long as a legitimate basis for the arrest existed before the search and the arrest followed directly after the search. Whether the officer intended to actually arrest the defendant at the time of the search is immaterial. Arrests must be based on probable cause. A canine alert provides probable cause.
Interlocutory Appeal - Reserve Ruling; Juvenile Delinquency Act; Conspiracy - Continuing Crime, Murder as Juvenile
United States v. Delatorre, 97-2357 (September 1, 1998)
The third superseding indictment charged Delatorre as a member of an Albuquerque street gang engaged in crack cocaine trafficking, and with various gang related crimes including murder, attempted murder, use of firearms, drug trafficking, racketeering and conspiracy. This is an interlocutory appeal by the government. The district court ruled the government could not introduce evidence of Delatorre's alleged participation in Garcia's murder for the purpose of proving his guilt on racketeering or conspiracy charges, because he was 18 at the time of the homicide. The court reserved ruling on whether the government could introduce such evidence to show relevant prior conduct under Rule 404(b). The court also reserved ruling on whether the government could introduce Garcia's murder at the death penalty phase to show future dangerousness.
HELD: (1) The government may initiate an appeal, if the Constitution permits and specific statutory authority provides for it. Section 3731 permits the government to appeal from all suppression and exclusions of evidence. A district court order that properly reserves ruling on evidentiary issues neither suppresses nor excludes evidence.
(2) Because conspiracy and racketeering are continuing crimes, some demonstration of post-18 participation in such crimes is necessary to sustain a conviction against the defendant indicted prior to the age of 21. But the district court went further. The court excluded the evidence. The Juvenile Delinquency Act addresses the district court's jurisdiction only with respect to a charged offense, and not the individual acts comprising the offense or evidence necessary to prove such acts. The circuits are split over whether the JDA requires the district court to instruct the jury that it may not consider evidence of an adult defendant's pre-18 conduct when determining guilt. Where an adult defendant is properly charged with a continuing crime, that defendant's pre-majority conduct is admissible.
Motion to Suppress - Review Standard; Confession - Voluntariness, Promise of Leniency; Sufficient Evidence - Review Standard; Hobbs Act (Robbery/Extortion, § 1951) - Minimal Effect on Interstate Commerce, Murder as Consequence of Robbery, Robbery of Owner of Business Engaged in Interstate Commerce, Depletion of Assets, Crime of Violence; Felony Murder (18 U.S.C. § 1111) - Proof of Intent to Commit Underlying Felony; Instructions - Review Standard, Interstate Commerce, Felony Murder
United States v. Nguyen, 97-3106 (September 3, 1998)
(David Autrey, Oklahoma City, Oklahoma)
Nguyen was charged, along with co-defendants, with the robbery of the Mandarin Restaurant in Wichita, Kansas in the murder of Mrs. Sun on November 8, 1994. Nguyen was charged with a Hobbs Act violation, and use and carry of firearm in relation to a robbery causing the death of a person (18 U.S.C. § 924(j)).
HELD: (1) In reviewing a district court's denial of a motion to suppress a statement or confession, the court accepts fact findings unless clearly erroneous. The ultimate issue of whether a statement is voluntary is a question of law reviewed de novo. Voluntariness is based on the totality of the circumstances. The court considers characteristics of the suspect such as age, intelligence, education, and details of the interrogation such as whether the suspect was informed of his rights, length of detention and interrogation, and use or threat of force. Nguyen was advised of his Miranda rights and understood them. He initialed the waiver of rights form. There is no evidence that he was unusually susceptible to coercion. He understood English. The interview was conducted in a non-coercive way. The district court made a credibility determination regarding whether Nguyen was told he could receive lenient treatment if he cooperated. A statement to inform the prosecutor of cooperation does not constitute a promise of leniency.
(2) Sufficiency of the evidence is reviewed de novo, viewing the evidence in the light most favorable to the government.
(3) The Hobbs Act is implicated if someone in any way or degree obstructs, delays, or affects commerce. The government need only show a de minimis effect on interstate commerce. This in turn may be shown by evidence of depletion of assets of a business engaged in interstate commerce, or which customarily purchases items in interstate commerce. The Mandarin Restaurant was a business engaged in interstate commerce.
(4) Events which occurred during the course of a Hobbs Act robbery may affect interstate commerce. The murder was a consequence of the robbery that can be considered for its effect on interstate commerce. The money stolen from Mrs. Sun's purse could also be considered, where she was an operator of a business engaged in interstate commerce and was the co-owner. The aggregate impact of the theft of restaurant money, decline in credit card sales and business revenue, the temporary closing after the robbery, the murder of Mrs. Sun, and money stolen from her purse establish more than a minimal nexus to interstate commerce.
(5) The evidence unequivocally showed that Chanthadara shot Mrs. Sun during the robbery. This killing constitutes felony murder under 18 U.S.C. § 1111(a). The felony murder doctrine means that a person who commits a dangerous felony, such as robbery, is guilty of murder if a death occurs during commission of the felony. The federal murder statute's definition of felony murder does not require the government to prove any intent, other than that the killing was committed in the course of the underlying felony. No additional proof of state of mind is necessary. Nguyen admitted to participating in the robbery. In addition, he aided and abetted the killing of Mrs. Sun. Nguyen held Mrs. Sun at gunpoint, brought her upstairs and beat her. He committed these acts knowing his co-defendant, Chanthadara, was armed and present in the room where Nguyen beat Mrs. Sun.
(6) Several circuits have rejected commerce clause challenges to § 924(c). The Hobbs Act robbery is the crime of violence element in § 924(j).
(7) The court reviews a district court's decision whether to give a particular instruction for abuse of discretion. The court determines whether the jury, considering the instructions as a whole, was misled. The district court did not err in rejecting an instruction that the jury could not consider the effect on interstate commerce of the murder of Mrs. Sun. And the jury could consider the money stolen from Mrs. Sun's purse. The use of words, like actual, potential and probable effect, represent the kind of aggregate or cumulative impact that is the linchpin of the interstate commerce nexus. A depletion of assets potentially affecting interstate commerce is sufficient to show a de minimis effect on interstate commerce. The court's instructions with regard to felony murder were also correct.
Identification - Impermissibly Suggestive Photo Array, Nonetheless Reliable; Admission of Evidence - Discretion Standard, Identification Expert; Cross-Examination - Discretion Standard, Prior Drug Use (20 Years Ago), Court Questioning; Motion For Judgment of Acquittal - De Novo Standard; Hobbs Act - Robbery Requires Actual or Threatened Force; Restitution - Illegal Sentence (Plain Error), No Proof of Loss
United States v. Smith, 97-1320 (September 4, 1998)
(Jenine Jensen, FPD, Denver, Colorado)
Smith was charged with Hobbs Act and theft from a federally licensed firearm dealer. On the evening of January 15, 1996, two men entered a sporting goods store in Colorado Springs. One asked to see two .45 caliber semi-automatic handguns. The sales clerk, Glen Dotson, cleared the two guns to make sure they were unloaded and handed the man the guns, one at a time. The man then moved down the counter and ran out the store. His companion ran also. Other employees joined the chase. The suspect who had the guns got in the driver's seat of a black Nissan 3000 ZX sports car. On its way out of the parking lot, the vehicle struck Dotson and broke his ankle. Employees gave their statements to the police in each others' presence and discussed their statements with each other. The procedure by police in showing photos included knowledge of photos selected by others, approval for picking out the right photo, and other actions.
HELD: (1) Whether identification procedures violate due process is a question of law reviewed de novo. The number of photographs in an array is a factor that affects the weight given to other irregularities. Leaving the names on the photos was particularly problematic. The agent's behavior bordered on coaching two of the eyewitnesses. The photo arrays were impermissibly suggestive. The second question is whether the identifications were nonetheless reliable. The court considers opportunity to view, degree of attention, accuracy of description, level of certainty, and time between the crime and confrontation. The court could not find a substantial likelihood of misidentification.
(2) The court reviews the decision to exclude expert testimony for abuse of discretion. This is governed by Rule 702. Expert testimony on identification may be admitted where there are problems of cross-racial identification, identification after long delay, identification after observation under stress, and psychological phenomena such as feedback factor and unconscious transference. The district court did not rule this evidence per se inadmissible. The district court did not abuse its discretion in excluding the testimony, although this is admittedly a close case.
(3) Mr. Smith's alibi was that he was with his friend, Jamie Doyle. Jamie Doyle's mother testified in Smith's behalf. The district court permitted the government to cross-examine Mrs. Doyle about her use of LSD 20 years earlier. The extent of cross-examination is within the sound discretion of the trial court. It was for the jury to decide whether Mrs. Doyle's use of LSD 20 years earlier affected her ability to recall the evening in question. The court also asked questions of her about this. The questions did not suggest an appearance of partiality.
(4) The court reviews the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the government. To justify the Hobbs Act conviction the government says that the offense of robbery continued throughout the escape phase of the crime due to the injury of Mr. Dodson's ankle. Robbery is the unlawful taking of property by means of actual or threatened force or violence or fear of injury. Theft or larceny involves the taking of property, without the owner's consent, but without force or violence. Smith did not threaten Mr. Dodson at the gun counter in any way, and the guns were unloaded. There was insufficient evidence that Smith accomplished the theft by means of actual or threatened force or violence. Therefore, the Hobbs Act conviction is reversed.
(5) The court may not order restitution in an amount that exceeds the loss caused by defendant's conduct. The government bears the burden of proving the amount of loss when seeking restitution. There was no objection and review is for plain error. Imposition of an illegal sentence constitutes plain error. A restitution order entered without proof of loss is clearly erroneous.
Downward Departure - Review Standard, Good Employment History, Family Responsibilities, Economic Hardship, Aberrational Behavior, Community Support and Service, Lack of Notice Prohibited From Possess Firearm, Unusual Disclosure, Negative Effect of Incarceration, Recommendation of Probation, Remand Unnecessary
United States v. Jones, 97-2341, 2342 (September 8, 1998)
(Thomas B. Jamison, FPD, Albuquerque, New Mexico)
Jones plead guilty to possession of a firearm by a prohibited person. The district court departed downward and the government appeals.
HELD: (1) Under Koon, the court considers whether the factual circumstances supporting a departure are permissible departure factors. Impermissible factors include forbidden factors, discouraged factors that are not present to some exceptional degree, and encouraged factors already taken into account by the applicable guideline that are not present to some exceptional degree. The inquiry of whether a factor is a permissible departure factor under any circumstances is essentially legal, and review is plenary. The court also evaluates whether the departure factors relied upon by the district court remove the defendant from the applicable guideline heartland, thus warranting a departure. This inquiry is essentially factual and review is most deferential. The court evaluates whether the record sufficiently supports the factual basis underlying the departure, and whether the degree of departure is reasonable. The court uses a unitary abuse of discretion standard of review. In this case the district court relied on 11 factors.
(2) Good employment history ordinarily is a discouraged basis, but is not forbidden or fully considered by the guidelines. Therefore the court considers the structure and theory of both relevant individual guidelines and the guidelines as a whole to decide whether the factor is sufficient to take the case out of the guideline's heartland. Collateral employment consequences was not relied on by the district court as a discrete basis for departure, but as one of 11 factors. A factor may be considered in the aggregate if it is atypical, even though it may not be sufficient, in and of itself, to support a departure. The district court did not abuse its discretion in determining collateral employment consequences were atypical.
(3) The second ground for departure was the economic hardship that incarceration would inflict on Jones' family. Family ties and responsibilities (§5H1.6) are not ordinarily relevant, and therefore are a discouraged basis for departure. But under §5K2.0 there may be a basis of departure in atypical cases. When used as the sole basis, family circumstances must be extraordinary. However, in this case, Jones' family responsibilities were not the sole basis for departure, but were considered in conjunction with 10 other factors. But even considered as a factor, the circuit was not convinced that Jones' family responsibilities were sufficiently unusual to render this discouraged factor a permissible basis for departure.
(4) As to the third ground of departure, that offense conduct was aberrational, the aberrant nature of a criminal defendant's offense conduct may properly be considered as a mitigating factor in a downward departure decision. The district court's characterization of Jones' conduct as aberrant behavior is reviewed under the abuse of discretion standard. The court had to determine how much deference was due. The Supreme Court has indicated that deference is owed to the judicial actor in a better position than another to decide the issue in question. A district court has special competence in making fact specific assessments necessary to determine whether a particular case is sufficiently unusual to warrant departure. The determination of whether an individual defendant's offense conduct is aberrational requires consideration of unique factors not readily susceptible of useful generalization, and the district court is in a better position to determine whether the defendant's offense conduct is out of character. Therefore the district court's resolution of this largely factual question is due substantial deference. The district court did not abuse its discretion in finding that Jones' offense conduct was aberrational.
(5) As to the fourth and fifth grounds of departure, long history of community service and strong support in the community, these are not ordinarily relevant to sentencing under §§5H1.6 and 5H1.11. While the district court could have done a more thorough job of explaining its reasoning, and while the circuit would be reluctant to sustain a departure solely on this basis, the circuit could not conclude the district court abused its discretion by aggregating this factor in support of its downward departure. While Jones' support in the community is insufficiently extraordinary to support a departure on this basis alone, the district court did not abuse its discretion by relying on this factor as one of several grounds supporting a departure.
(6) The sixth ground for departure was Jones' lack of notice that he could not possess a firearm because he was subject to a domestic restraining order. There is no requirement that the defendant be aware of the law or even act willfully in order to be convicted under § 922(g). But this is a sentencing question, not an issue regarding the conviction. Lack of notice is not specifically addressed by the guidelines. When a factor is unmentioned, the court looks to the structure and theory of individual guidelines and the guidelines as a whole. The relevant guideline clearly intended to punish innocent possession and use of a firearm less severely. But the facts of this case indicate that Jones' claim that he is less culpable due to lack of notice rings hollow. Jones' lack of notice was not a permissible basis.
(7) The seventh ground for departure was Jones' highly unusual disclosure of the facts underlying his false statement offense. The sentencing guidelines state that if the defendant voluntarily discloses to authorities the existence of and responsibility for the offense prior to discovery of the offense, and if such offense was unlikely to have otherwise been discovered, a departure may be warranted. But disclosures motivated by knowledge that discovery is imminent are excluded. Jones' disclosure appears to fall between the express provisions of the guidelines. Therefore his disclosure to the pretrial services officer did not occur in connection with investigation and is not excluded as a ground for departure under §5K2.16.
(8) Prior to the downward departure, Jones received a three-level reduction for acceptance of responsibility. But in departing, the district court focused on the voluntariness of the disclosure, and not simply acceptance of responsibility. And the Sentencing Commission specifically acknowledged that the district court is in a unique position to evaluate a defendant's acceptance of responsibility. Therefore, the determination of the sentencing judge is entitled to great deference. By this same logic, the court accords due deference to the decision that Jones' conduct was highly unusual.
(9) The eighth and ninth grounds were adherence to conditions of his release and improvement in his post-offense conduct. Under Tenth Circuit law, post-offense rehabilitation is already taken into account under acceptance of responsibility under Zeigler. But Zeigler has been effectively overruled by Koon. See Whittaker. Koon makes it clear that post-offense rehabilitation may be a basis for downward departure. Post-offense rehabilitation has been taken into consideration by the guidelines. When an encouraged factor has been taken into consideration. it may serve as the basis for departure only when present to some exceptional degree. Again, the district court is best situated to make this determination and is entitled to great deference. The fact-based assessment of Jones' post offense rehabilitation efforts falls squarely within the district court's special competence. The district court did not abuse its discretion in relying on this as a basis for downward departure.
(10) The tenth ground for departure was the negative effect incarceration would have on the quality and quantity of Jones' rehabilitative counseling. Mental and emotional conditions are specific offender characteristics and are a discouraged basis for departure under §5H1.3. But the guidelines provide that a sentencing court may consider specific offender characteristics, if present to an unusual degree and if they distinguish the case from the heartland cases. The district court found that Jones' employment at a public health facility afforded him the opportunity for daily contact with his psychologist, putting Jones in a very special position to receive the most effective counseling for rehabilitation. This is an exceptional circumstance, and the district court did not abuse its discretion in this regard.
(11) As to the eleventh reason for departure, that the United States probation office concluded departure would be appropriate, sentencing courts typically rely on the expertise and recommendations of the probation office. While it would be inappropriate for a sentencing court to rely solely on the unsubstantiated opinion of a probation officer, it is not impermissible for the district court to consider the probation officer's opinion on the appropriateness of the departure. However, the circuit did not consider this "factor" on a par with the other grounds for departure articulated by the district court.
(12) The circuit concluded the district court relied on both valid and invalid factors. The court then moved to the second inquiry in the departure analysis, whether the combination of permissible factors removed Jones' case from the heartland. This is essentially factual and entitled to substantial deference. The court simultaneously considered whether the record sufficiently supports the factual basis for departure. The Sentencing Commission explicitly left open the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the heartland cases. The record left the circuit no doubt that the sentencing court found this case sufficiently atypical to warrant departure without recourse to the two impermissible factors. The district court made a global assessment that all these factors, not in combination, but individually, are present to an exceptional degree. The district court's discussion of the grounds for departure indicates the permissible factors were present to an exceptional degree. The record indicates the district court considered its decision to depart in light of the statutory purposes of sentencing. The district court did not abuse its discretion when it found the circumstances to be atypical.
(13) Finally, the circuit has to determine whether the degree of departure is reasonable. The downward departure by three levels was reasonable.
(14) But because the district court based its decision to depart on both permissible and impermissible factors, the circuit had to determine whether a remand is necessary. A remand is necessary unless the court concludes, on the record as a whole, that the district court would have imposed the same sentence absent reliance on the invalid factors. Based on the circuit's review of the record, it was convinced the district court would impose the same sentence.
Career Offender - Crime of Violence, Non-Forcible Sex Offenses
United States v. Coronado-Cervantes, 96-2247 (September 8, 1998)
Coronado committed two violent criminal offenses. The question is whether he should be sentenced as a career offender. The defendant was at least 18 years of age. The district court held his prior conviction for sexual contact with a minor is not a crime of violence under §4B1.2, and declined to sentence him as career offender. The government appeals and the circuit reversed. The district court looked only at what Coronado plead guilty to, and found there was nothing in the elements of the offense, the plea agreement or information that alluded to use of force, and therefore held that the crime was not a crime of violence.
HELD: (1) Section 4B1.1 defines career offender with three criteria, age of the defendant, instant offense is a felony that is either a crime of violence or a controlled substance offense, and the defendant has at least two prior felony convictions of crime of violence or controlled substance offense.
(2) A crime of violence is defined to include the use, attempted use, or threatened use of physical force. The government argues the conduct presented a serious potential risk of physical injury to the victim. The definitions of crime of violence in 18 U.S.C. § 16 and §4B1.2 differ, but the reasoning of the Reyes-Castro case under 18 U.S.C. § 16 is persuasive. Section 4B1.2 commentary specifies that forcible sex offenses are crimes of violence. But this does not mean that non-forcible sex offenses can not ever be considered crimes of violence, even if they come within the "otherwise" provision.
Pretrial Publicity - Presumed or Actual Prejudice, Venue, Impartial Jury, Confession; Juror Misconduct - Discretion Standard, Hearing, Extraneous or Intra-Jury Influence; Admission of Evidence - Alternate Suspect; Statutory Construction - De Novo Standard, Specific Intent as Element, Lesser Offense; Level of Intent - Knowledge or Specific Intent, Death Penalty, Malicious; Instructions - Lesser Included, Rational Basis; Victim Impact - Guilt and Penalty Phases; Impartial Jury - Voir Dire, Bias of Unseated Jurors, Automatically Impose Death, Morgan
United States v. McVeigh, 97-1287 (September 8, 1998)
(Robert Nigh, Jr., Tulsa, Oklahoma and Richard Burr, Houston, Texas)
HELD: (1) With regard to pretrial publicity, presumed prejudice requires the court to evaluate the publicity and the circumstances surrounding it to determine whether a reasonable juror exposed to such publicity could remain impartial. A claim of actual prejudice is subject to a more deferential standard. The bombing itself and McVeigh's arrest received a great deal of attention. Venue was moved to Denver. Then newspapers carried reports of McVeigh's confession. The Supreme Court has not found a single case of presumed prejudice since the watershed case of Shepard. McVeigh can not meet this high hurdle given that there was a change of venue, and television images of McVeigh in prison garb being led through an angry crowd do not come close to the inflammatory publicity required to reach the disruptive force seen in prior cases. McVeigh's attorneys denied the validity of the confessions. An indirect report of a confession will have far less impact.
(2) As to actual prejudice, the court has to decide whether the district court abused its discretion in determining that the seated jury could disregard adverse pretrial publicity. The court gives due deference to jurors' declarations of impartiality.
(3) The court reviews for abuse of discretion the decision on how to handle the allegation of juror misconduct, and the question whether this juror should have been excused from service. One juror was reported to have said, "I think we all know what the verdict should be." The court reinstructed the jury and did not hold a hearing. Generally, allegations of extraneous influences require the district court to hold a hearing. But the district court has discretion to refuse to hold a hearing when it can be established that the hearing would not be useful or necessary. Intra-jury misconduct is less serious than extraneous influences on the jury. Under the circumstances of this case, the district court did not abuse its discretion in declining to hold a hearing. Nonetheless, the judge had to decide whether the juror was so tainted as to deny the defendant his constitutional right to an impartial jury. The court did not abuse its discretion in allowing the juror to remain seated.
(4) Regarding evidence of alternate suspects, the court reviews a district court's ruling on relevance and potential prejudice under the abuse of discretion standard. The district court did not make an explicit record of its balancing of Rule 403 factors, but the circuit could conduct a de novo balancing. Rule 401 deals with relevancy of evidence. Even though evidence may meet that standard, the trial court may exclude if based on Rule 403 balancing test. The alternate suspect evidence concerned Carol Howe's proffered testimony and suspension of the Elohim City investigation. The quality or bias of a criminal investigation may affect the reliability of particular evidence in a trial, and the facts surrounding the investigation may become relevant. But there was no trial evidence the reliability of which would have been undercut.
(5) Whether § 2332(a) and § 844(f) require specific intent is a question of statutory construction reviewed de novo. Whether these statutes have lesser included offenses is also reviewed de novo. When Congress fails to specify the intent, courts will either read a level of intent into the statute or hold it to be strict liability. In light of the nature of the offense and severity of the punishments, § 2332(a) is not a strict liability crime. The intent standard of knowingly is appropriate for each of the elements of § 2332(a). The court is aware the government may not secure a death sentence without proving a certain level of criminal intent. Necessary findings may be made at any stage of the proceedings, including during sentencing or on appeal. The fact that the indictment charged intent to kill is mere surplusage and may be disregarded.
(6) The language of § 844(f) requires the criminal intent of maliciously. One acts maliciously if he or she acts intentionally, or with willful disregard of the likelihood that damage or injury will result.
(7) The Constitution does not require a court to instruct on lesser included offenses that do not exist under the law. Second degree murder is a recognized lesser included offense of first degree murder. The only difference between the two is premeditation. The district court thought this was an all or nothing verdict, because it did not see how the jury could rationally say McVeigh was involved in the bombing but that there was no premeditation. A judge does not abuse his discretion by refusing a lesser included offense instruction, when the evidence provides no rational basis upon which a jury could find the defendant guilty of the lesser offense.
(8) The admission of evidence under Rules 401 and 403 is reviewed for abuse of discretion. McVeigh challenged guilt phase victim testimony. Review of some of this testimony is plain error, and some McVeigh had a continuing objection to. In certain circumstances, a continuing objection has been allowed as a specific timely objection but continuing objections are generally considered inappropriate for preserving error on appeal under Rule 403. Most objections will prove to be dependent on trial context, and will be determined to be waived if not renewed at trial. But since the district court granted a continuing objection, the court felt it would be unfair to hold that McVeigh could not rely on this objection, so the court reviewed for abuse of discretion. Any error in admitting most of this evidence which was not particularly relevant to the guilt phase issues was harmless error.
(9) A claim that admitted evidence injected an intolerably high degree of emotion into the guilt phase is more properly reviewed as a due process claim rather than under the Eighth Amendment. The emotional impact of victim-impact testimony stemmed from the enormity of the crime. The government exercised considerable restraint.
(10) The district court has wide discretion in conducting voir dire. The court would find an abuse of discretion if the court unconstitutionally restricted McVeigh's questioning. Again there was a continuing objection. The bias of unseated jurors is irrelevant to whether McVeigh had an impartial jury. The court only considers the voir dire of the twelve jurors who decided the case.
(11) In Morgan v. Illinois, the Supreme Court held that a juror who would automatically impose the death penalty is not an impartial juror and must be removed for cause. Morgan is referred to as the reverse Witherspoon situation, where the court found that a juror who would never vote for capital punishment must be excused for cause. Part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. There are two types of Morgan questions at issue here. The first consists of non-context specific questions that generally seek to determine a juror's core value system, i.e., whether the juror would automatically impose the death penalty. The second category consists of context specific questions that focus on whether the facts of the bombing had predisposed prospective jurors. The district court did not abuse its discretion in excluding the general Morgan questions where the courts are not required to permit improperly phrased questions. The district court denied several specific Morgan questions. Morgan does not require courts to allow questions regarding the evidence expected to be presented. Morgan does not require questioning about specific mitigating or aggravating factors. McVeigh's right to a life qualified the jury was adequately protected.
(12) The sentencer in capital cases must be permitted to consider any mitigating factor. A defendant is constitutionally entitled to present any aspect of his character, record or offense in mitigation.
(13) The Supreme Court decision in Payne permitted victim impact evidence in the penalty phase, but exclusion may be necessary for due process.
Motion to Vacate Sentence (28 U.S.C. § 2255) - Fundamental Defect, Procedural Default - Waiver by Government; Applicability of AEDPA - Certificate of Appealability; Law of the Case Doctrine; Downward Departure - Discretionary Refusal, Family Responsibilities, Koon Aberrant Behavior; Scope of Remand; Teague - New Constitution Rules of Criminal Procedure
United States v. Talk, 97-2088 (September 11, 1998)
Talk filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. The district court had departed downward, because of aberrant behavior and strong family and community ties and responsibilities. The circuit had remanded. On remand the district court again granted a downward departure, relying on a combination of factors including family ties, educational accomplishment, employment record, lack of criminal history and temperance. The circuit again reversed. At the last sentencing, the district court denied a downward departure. No appeal was taken. Then Koon was decided, and Talk filed the present § 2255 motion. The district court refused a downward departure in light of prior Tenth Circuit decisions in the case. The circuit had to consider procedural bar, certification of appealability, and law of the case doctrine.
HELD: (1) A defendant who fails to present an issue on direct appeal is barred from raising it in a § 2255 motion, unless he can show cause for his procedural default and prejudice. If the government fails to raise Frady's procedural bar until the appellate level, it is not entitled to disposition on those grounds. The government failed to raise this defense before the district court.
(2) Talk began this § 2255 motion on August 30, 1996. So the AEDPA applies and requires a certificate of appealability. The district court issued a COA that fails to comply with the AEDPA's requirement that the certificate indicate the specific issues that make a substantial showing of denial of a constitutional right. An erroneously issued certificate does not deprive the circuit of jurisdiction.
(3) As to law of the case doctrine, a court of appeals errs if it applies the law of the case doctrine to preclude relief in a § 2255 motion, on the basis of an intervening change in the law.
(4) Talk I, could not have reviewed a discretionary refusal to depart because the circuit lacks jurisdiction as to that. In Talk I, the court vacated the sentence and remanded to begin de novo sentencing. On such remand, the district court has discretion to entertain evidence that could have been presented at the original sentencing, even on issues that were not the specific subject of the remand. But Talk I holds that family responsibilities are explicitly mentioned in the guidelines as irrelevant. In Koon this is a discouraged factor. But the law of the case binds the district court to refuse to consider family circumstances.
(5) Section 2255 permits a collateral attack on a sentence imposed in violation of the constitution or a statute. But not every violation of a statute can be remedied by a motion under § 2255. Only fundamental defects that result in a complete miscarriage of justice may be considered. A non-constitutional non-jurisdictional error must present exceptional circumstances. The contours of the fundamental defect exception have not been excessively mapped. Three errors have been found not to be actionable; denial of allocution and sentencing, technical error in taking the guilty plea, and subsequent policy change by the United States Parole Commission that frustrates the subjective expectation of a sentencing court. Only in the Davis case did the Supreme Court hold that a subsequent change in substantive law made a defendant's formerly illegal behavior lawful. But the Tenth Circuit has held a violation of Rule 32 at sentencing may support a claim under § 2255. That case involved an error in compiling the central document in the correctional process, that is, making a written record of resolution of contested matters in the presentence report. If that can constitute a fundamental defect, then an error resulting in a significantly miscalculated sentence may be as well.
(6) Teague holds that new constitutional rules of criminal procedure will not be applicable to those cases which have become final before new rules are announced. Teague applies to rules that are both new and constitutional. Teague did not apply to bar a § 2255 petition for retroactive application of Bailey, because the only constitutional claim made was not new. Talk's statutory claim asks the court to apply a rule that is neither new nor constitutional. Koon's prescriptions for appellate review interpret 28 U.S.C. § 3742, a statute in effect at all times during Talk's sentencing. Koon neither imposes a new obligation on the states or federal government, nor does it announce a result not already dictated by existing law. At the time of Talk II, the court had a three-tier standard for guideline departures: de novo of whether the circumstances of the case present a factor not adequately taken into consideration, clearly erroneous review of fact determinations, and reasonableness review of the degree of departure. In effect, Koon split the first de novo inquiry in two. Plenary review still applies to whether factual circumstances supporting departures are permissible factors. But a district court's resolution of whether the particular factual circumstances of a case make it a-typical and warrant departure is essentially factual and is reviewed for abuse of discretion. Talk II rejected the single act of aberrant behavior theory of departure. If Talk II determined de novo that factors cited by the district court were not so a-typical as to take the case out of the heartland of the guidelines, that would be inconsistent with Koon. But there are some cases in which an appellate court should determine de novo whether an allegedly special circumstance is of a kind that permits departure.
(7) A sentencing court abuses its discretion when it downward departs based the view that criminal history category I overstates the seriousness of criminal history.
(8) Family ties and responsibilities are a discouraged departure factor and the court should depart only if the factor is present to an exceptional degree. The district court did not make a finding of exceptionalism.
(9) The aberrance of a criminal act is an encouraged factor for departure. Under Koon, a district court is legally not authorized to depart on the basis of aberrance if an applicable guideline already takes it into account. But none does here. This is a factual judgment by the district court which the circuit must review deferentially. But Talk II may have meant that the fact findings underlying the finding of aberrance were clearly erroneous. The court affirmed.
Hobbs Act (§ 1951) - Substantial Effect on Interstate Commerce; Alibi - Notice, Exclude Evidence; Insufficient Evidence - Review Standard; Instructions - Felony Murder, Lesser Included Offense, Felony Murder - Malice, Commission of Felony
United States v. Pearson, 97-3271 (September 15, 1998)
Pearson was convicted of conspiracy to obstruct commerce by robbery and a Hobbs Act violation, as well as use and carrying a firearm. Two men, wielding a hand gun, robbed a restaurant. The handgun accidentally discharged and the bullet killed an employee. The robbers fled with $2,500.
HELD: (1) The court reviews challenges to the constitutionality of a statute de novo. Section 1951 (Hobbs Act) regulates activities which in aggregate have a substantial affect on interstate commerce. Therefore, § 1951 is within Congress' commerce clause authority.
(2) Rule 12.1(a) deals with notice of alibi. Counsel learned that Pearson's mother wished to provide alibi testimony, and moved for a continuance to develop this defense, despite failure to give timely notice. The court reviews the district court's decision to exclude alibi evidence for abuse of discretion. Pearson's attorney's diligence does not excuse Pearson's own negligence. Pearson and his mother would have known of this alibi defense long before the deadline.
(3) When reviewing a verdict for sufficiency of the evidence, the court reviews the record de novo and asks whether, taking the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt. The evidence was sufficient to prove to support the jury's verdict.
(4) The felony murder jury instruction instructed that a killing is done with malice aforethought when done deliberately and with intent to kill another person, or if it results from commission of a robbery. The court reviews de novo challenges to jury instructions. Malice aforethought is determined by reference to the common law. To prove malice aforethought, the prosecution need show only the commission of the specified underlying felony.
(5) Whether an offense qualifies as a lesser included offense is a question of law reviewed de novo. A defendant is entitled to a lesser included offense instruction if there is a proper request, the lesser included offense includes some but not all of the elements, the elements differentiating the two offenses are in dispute, and a jury could rationally convict the defendant of the lesser offense and acquit him of the greater offense. Second degree murder is any other unlawful killing of a human being with malice aforethought, if the crime does not meet the first degree murder definition. Malice aforethought as an element of second degree murder is a type of constructive or implied malice. While commission of the felony supplies malice for a felony murder, second degree murder's malice aforethought is satisfied by intent to kill without premeditation and deliberation, intent to do serious bodily injury, depraved heart, or commission of a felony not specified in the first degree murder paragraph. A jury could not rationally convict Pearson of second degree murder, because the robbery and accidental killing do not satisfy any of the types of implied malice aforethought required to prove the crime. Pearson accidentally fired the shot that killed Montgomery. Therefore, the only reason the government was able to convict Pearson of first degree murder was because malice aforethought is supplied through commission of the robbery itself. The accidental discharge of a gun does not constitute voluntary manslaughter under § 1112.
Search - Standing to Challenge, Exigent Circumstances Standing, Expectation of Privacy in Workplace, Business Nexus Test
United States v. Anderson, 97-6310 (September 15, 1998)
The government appeals the district court's order granting the motion to suppress. The court affirmed.
Anderson was arrested after a successful FBI sting operation involving child pornography. FBI agents observed Anderson pick up the package of videotapes mailed to him, and go to his place of employment where he was vice-president. Agents were concerned Anderson would view the tapes, and suspect involvement of law enforcement when he discovered the tapes were blank. So they decided to immediately arrest him. They knocked and activated the siren, but Anderson is hearing-impaired. Agents were concerned that Anderson was destroying the tapes, so they broke into the office building, unlocked the door to Room 222 without knocking, and found Anderson preparing to watch one of the tapes. Anderson waived his Miranda rights and made incriminating statements, and gave consent to search in the office and at his home.
HELD: (1) Whether a defendant has standing to challenge a search is a legal question reviewed de novo. The defendant must show a subjective expectation of privacy, and that expectation must be one society is prepared to recognize as reasonable. Whether an employee has a reasonable expectation of privacy in his work area must be addressed on a case by case basis. An employee has a reasonable expectation of privacy in his office. The business nexus test does not take into account actions the individual may have taken to maintain privacy with respect to the item. The court considers the employee's relationship to the items seized, whether the item was in the immediate control of the employee, and whether the employee took actions to maintain his privacy. Anderson entered the locked ATD office on a Saturday during a holiday weekend with the videotapes in question. The tapes were not ATD property, but were his personal possessions. He took the tapes into Room 222, shut the door, and covered the side light window. He maintained control over the videotapes, and didn't even try to store them in the room. He was still in possession of the tapes when agents searched the room.
(2) The warrantless search of the ATD office was presumptively unconstitutional, unless the government can establish an exception to the warrant requirement. The government bears the burden of proving exigency. The court affirmed the district court's finding that the government failed to present exigent circumstances. So the search of Room 222 was unconstitutional, and items seized during that search and statements that were the fruit of that search, must be suppressed.
Instruction - Review Standard, Child Witness, General Credibility; Admission of Evidence - Failure to Object (Plain Error Review), Physicians' Statement, Hearsay Exception (Medical Diagnosis), Identity of Abuser
United States v. Pacheco, 97-2311 (September 15, 1998)
(Joseph W. Gandert, FPD Albuquerque, New Mexico)
Pacheco was found guilty of two counts of aggravated sexual abuse of a child while in Indian country.
HELD: (1) The court reviews refusal to give tendered instructions for abuse of discretion, and reviews the instructions as a whole to determine whether the instructions adequately stated the governing law. The question of whether a jury is properly instructed is a question of law reviewed de novo. Pacheco requested a child witness instruction which the district court refused, giving only a general credibility instruction. The district court has discretion to determine whether it is appropriate to give a child witness instruction. The district court erroneously concluded it did not have authority to give such instruction, but that does not end the inquiry. The general witness credibility instruction provided the jury with adequate guidance.
(2) Pacheco argues the district court erred by admitting testimony of two physicians. Because of no objection, review is for plain error. The government urges the testimony of the physicians' statements are admissible under Rule 803(4), as to statements made for purposes of medical diagnosis. The rationale behind the rule is that a patient's medical care depends on the accuracy of information she provides, so the patient has a motive to be truthful and patient statements to a physician are reliable. Pacheco argues there was no evidence that the child understood she was speaking with a doctor, so the trustworthiness guarantee underlying the rule does not apply. The circuit has previously rejected that argument. And Pacheco has not pointed to any evidence to indicate the child did not understand she was being examined by a doctor. The child victim was subject to cross examination in this case. This circuit has also held that a child's statement to a physician identifying the person who caused the injuries is admissible under Rule 803(4), if the alleged abuser is a member of the victim's household. Although Pacheco was not the child's natural father, he had an intermittent relationship with the mother. His relationship with the child was such that his identity as her abuser was reasonably pertinent to the course of treatment.