Motion For New Trial - Discretion Standard, Time For Filing, Newly Discovered Evidence;

Suppression of Evidence

United States v. Quintanilla, 97-2332 (October 1, 1999)

(Barbara A. Mandel, FPD, Las Cruces, New Mexico)

The United States appeals from the district court's grant of a motion for new trial. The circuit reversed.

HELD: (1) A new trial may be granted in the interests of justice. This is reviewed for abuse of discretion. Under Rule 33, a defendant may request a new trial on any basis, within seven days. After the seven day period, a new trial request may be based on newly discovered evidence. Other circuits have held that a motion filed within seven days, asserting newly discovered evidence, is subject to a heightened discretion standard. The circuit disagreed, holding that the interests of justice standard applies to all motions for new trials, including those predicated on newly discovered evidence.

(2) The defendant must show the evidence was discovered after trial, the failure to learn of the evidence was not caused by lack of diligence, the new evidence is not merely impeaching is material, and is of such nature that a new trial would probably produce an acquittal. The substance of the witness' interview with the agent was known to the defendant before trial commenced. This was not newly discovered. As to evidence at the witness' own sentencing, defendant employed no diligence in attempting to get this information. None of the proposed testimony would have been material.

(3) To the extent the district court granted the new trial because of concern it had erred in denying the motion for continuance, the district court had no jurisdiction to consider that ground. A new trial motion, based on grounds other than newly discovered evidence, must be filed within seven days. A defendant may not add new arguments in support of a motion for new trial by including them in an amendment filed after the time under Rule 33 has expired.

(4) To establish a Brady violation, the defendant must demonstrate the prosecution suppressed evidence, the evidence was favorable to the defendant and material. The fact that the prosecutor failed to turn over the agent's notes does not constitute a Brady violation, where the defendant already had the evidence. The prosecution's disclosure was merely cumulative, rendering the suppressed evidence immaterial. (Dissent by Seymour).

Appellate Jurisdiction - Final Order, Collateral Order Doctrine, First Amendment Defense

United States v. Ambort, 99-4066 (October 19, 1999)

The defendants were indicted for conspiracy to defraud the United States by assisting in preparation of false tax returns and 70 counts of false tax returns.

HELD: (1) The appellate court's jurisdiction is limited to appeals from final judgments except where a case falls within the "collateral order" exception. Three requirements must be met for that exception: the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.

(2) The First Amendment sets forth a right to petition for redress of grievances. The courts look at a claim of "right not to be tried" with skepticism. The First Amendment defense, as asserted in this case, is adequately protected by review after an adverse final judgment.

Admission of Evidence - Discretion Standard, Foundation, Chain of Custody, Hearsay;

Court Conduct - Control Proceedings, Discretion Standard, Sidebar, Objections;

Obstruction of Justice;

Ineffective Assistance of Counsel - Downward Departure

United States v. Mills, 98-1378 (October 19, 1999)

(Jenine Jensen, FPD, Denver, Colorado)

Mills was convicted of depriving a federal prisoner of his Eighth Amendment right to be free from cruel and unusual punishment in violation of 18 U.S.C. § 242. Mills was an inmate counselor at the penitentiary in Florence, Colorado. To curtail a problem with prison guards beating inmates, escort teams were required to designate a team member to videotape an inmate escort. The videotape was admitted into evidence, although it did not show the assault. It only showed the initial arrival at the cell and the subsequent escort down the hall. The digital time designation displayed a 5-minute time gap. The officer who had been designated to do the videotaping testified that he had recorded the entire assault. But after the incident and while other team members were moving down the hall, Mills had ordered him to hand over the camera. Other officers said that they heard Mills say he was rewinding the tape to do away with the beating. After rewinding, Mills returned the camera to the junior officer and told him to begin filming again.

HELD: (1) The court reviews admission of evidence for abuse of discretion. When proffered evidence has distinctive characteristics which make it unique, readily identifiable, and relatively resistant to change, its foundation for admission may be established by testimony that the evidence is what its proponent claims it to be under Rule 901. Except for the obvious deletion, the evidence was readily identifiable and there was no error in admitting the videotape. In addition, flaws in the chain of custody go to the weight of the evidence but do not preclude admissibility.

(2) The court reviews the district court's control of trial proceedings for abuse of discretion. Each of the four refusals to hold a sidebar which Mills criticizes relates to government requests following the court's overruling of government objections. Because of the court's favorable treatment of Mills, the circuit disagreed that there was any suggestion that counsel was incompetent. The circuit also disagreed with Mills' interpretation that one of the court's statements constituted an absolute bar to sidebars.

(3) The court upholds a district court's rulings on properly made objections unless the court abused its discretion and caused manifest injustice to the parties. The court assumed the objections were timely and preserved for appeal. As to the hearsay objection, because both the witness and defense counsel conceded that Mills made the statement to the witness, the circuit found no error in admitting the hearsay over Mills' objection. As to the objection concerning a witness' knowledge of whether the assault was videotaped, the government established a proper foundation for the witness' knowledge.

(4) Mills' sentence was increased for obstruction of justice under §3C1.1 based on destruction of the video record of the assault. The evidence was sufficient by a preponderance to show that Mills tampered with the videotape so as to erase the assault. The fact that he did so prior to an investigation does not mean the enhancement was improper. Awareness of an impending investigation is sufficient to satisfy the nexus requirement of the obstructive conduct to the offense.

(5) The court declined to review Mills' ineffectiveness claim based on whether counsel should have made a more specific reference to Koon for purposes of a downward departure.

Motion to Suppress - Review Standard;

Search - Knock and Announce, Federal Law Governs;

Firearm Enhancement - Review Standard, Possession, Clearly Improbable Defense, Reasonably Forseeable;

Drug Guidelines - Capped Offense Level if Defendant Did Not Personally Participate

United States v. Dickerson, 98-6452 (October 20, 1999)

Dickerson appeals from his conviction for managing a building for use in illegal drug activity in violation of 21 U.S.C. § 856.

HELD: (1) In reviewing the denial of a motion to suppress, the court reviews the evidence in the light most favorable to the government and accepts fact findings unless clearly erroneous. The ultimate question of reasonableness is a question of law reviewed de novo.

(2) The common law "knock and announce" principle is part of the reasonableness inquiry under the Fourth Amendment. But when justified by exigent circumstances, the presumption in favor of announcement must yield. The district court found exigent circumstances justified the no-knock entry into Dickerson's residence. These fact findings are supported by the evidence. In addition, the district court found the search occurred prior to 10:00 p.m. and this finding is not clearly erroneous. Even though a search under state law had to occur before that time, in federal prosecutions, the test of reasonableness is determined by federal law even though police actions are those of state police officers.

(3) Based upon the presence of firearms found in the search, the district court increased Dickerson's offense level by two points under §2D1.1(b)(1). The court reviews the district court's interpretation of the guidelines de novo and fact findings for clear error. That guideline calls for an enhancement if a dangerous weapon was possessed. The adjustment only does not apply if it is clearly improbable that the weapon was connected with the offense. The burden is on the defendant. The government satisfied its burden of proving possession. The hand gun was found near a crack pipe. The firearms, drugs and drug paraphernalia were all located in the house which Dickerson, through his guilty plea, acknowledged he possessed. By its very nature, the offense of conviction involved the participation of other persons. To violate § 856(a)(2), Dickerson had to provide the house or building, and other parties had to use it, to engage in drug trafficking. Therefore Dickerson can be held accountable for any reasonably foreseeable activities engaged in by the parties using his house for drug trafficking activities, including possession of a firearm. Dickerson did not present any evidence demonstrating the firearms were not connected with the drug trafficking activities.

(4) Section 2D1.8(a) provides that, if the defendant did not participate in the underlying controlled substance offense other than allowing use of the premises, the offense level should be capped at level 16. The circuit held the burden falls on a defendant to prove he did not personally participate in order to obtain the benefits of this section. Dickerson failed to establish this.

Habeas Corpus (28 U.S.C. § 2254) - Procedural Bar, Waiver By Fail to Object to Magistrate's Recommendation;

Element or Sentencing Enhancement - Prohibit Affirmative Defense of Entrapment;

Entrapment - Prohibit Affirmative Defense

Vega v. Suthers, 98-1024 (October 26, 1999)

Vega was convicted in Colorado state court of possessing cocaine with intent to distribute. His sentence was enhanced as a special offender because he imported the drug into Colorado. His conviction was affirmed on direct appeal. He then filed a habeas corpus action.

HELD: (1) This court has adopted a firm waiver rule regarding a litigant's failure to file timely objections to a magistrate's recommendation.

(2) This court reviews the district court's legal conclusions de novo and its factual findings for clear error, and gives deference to the state court's construction of state law that treats the special offender law as a sentencing provision rather than a separate substantive element.

(3) The Supreme Court decision in Jones was decided after the parties originally filed their briefs and the court ordered supplemental briefing. It is undisputed that Vega received all the procedural protections at issue in McMillan. He received notice of the possibility of the special offender enhancement through a separate pre-trial charge. The question of whether he imported cocaine into Colorado was submitted to the jury in a special verdict form. The jury was instructed it must find the element of importation beyond a reasonable doubt. The only right Vega was denied by classifying § 18-18-107 as a sentencing enhancement, rather than a crime or element, was the right to present an entrapment defense to the importation charge. The circuit rejected the state's claim that Vega is procedurally barred from raising the narrow question. The opinion of the Colorado Supreme Court establishes that this precise issue was raised in state court. The circuit concluded that whether § 18-18-107 is called a sentencing enhancement or an element has no impact on the procedural protections due a criminal defendant. Colorado can, consistent with due process, choose not to make the affirmative defense of entrapment available to a charge of importation of cocaine in violation of § 18-18-107. The defense of entrapment is not of constitutional dimension.

Admission of Evidence - Sexual Abuse (Rule 414), Rule 403's Balancing, Similar Acts, Adequate Reasons

United States v. Mann, 99-2013 (October 27, 1999)

(Judith A. Rosenstein, FPD, Albuquerque, New Mexico)

Mann was convicted of aggravated sexual abuse. At trial, the court allowed R.K. to testify under Rule 414. In his first appeal, the circuit concluded the district court's explanation of its decision to admit the Rule 414 evidence was insufficient, and remanded for an explanation as to its Rule 403 ruling. This time, the circuit affirmed.

HELD: (1) The court reviews the admission of Rule 414 evidence for abuse of discretion. Under Rule 403, a court must exclude Rule 414 evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Under Enjady, the district court must make a preliminary finding that a jury could find by a preponderance that the prior similar sexual act occurred. The district court correctly found the transcripts did not support the defendant's position that R.K.'s mother forced R.K. to accuse the defendant. The second Enjady factor requires that the evidence be probative of the material fact it is admitted to prove. Uncharged prior sexual acts are probative if similar to the charged crimes. The third Enjady factor requires the district court to evaluate the seriousness of the dispute over the material fact the Rule 414 evidence is admitted to prove. In this case the defendant disputed R.K.'s allegations and denied all the charges against him. Fourth, the district court must determine whether the government can avail itself of any less prejudicial evidence. There is nothing in the record to suggest the government had access to any less prejudicial evidence. Finally, the trial court must assess the probative dangers associated with Rule 414 evidence. The district court found that R.K.'s testimony created no danger of unfair prejudice. The jury convicted the defendant on charges involving S.Y., but acquitted him on charges involving K.C. The circuit concluded the district court properly applied the Enjady factors, and adequately explained the basis for its decision to admit R.K.'s testimony.