June 25, 2017

Archives for August 8, 2016

Tenth Circuit: Speedy Trial Objections Must Be Asserted Frequently and Forcefully

The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Monday, July 26, 2016.

The government charged multiple defendants, including James Black, with conspiracy to distribute cocaine in late 2007. After withdrawing and reasserting indictments, Black was eventually charged with conspiring to distribute cocaine, using a telephone in committing the conspiracy, and possessing with intent to distribute cocaine in the government’s Fifth Superseding Indictment. A jury convicted Black on all charges and he was sentenced to 360 months’ imprisonment.

On appeal, Black argued that the trial court plainly erred in calculating his Guidelines range at 360 months to life. The government conceded the error, and the Tenth Circuit agreed. Black should have been sentenced with a total offense level of 34, not 37, reducing his Guidelines range to 262 to 327 months’ imprisonment. The Tenth Circuit remanded for resentencing.

Black also argued that his Sixth Amendment speedy trial rights were violated. The Tenth Circuit evaluated the delays, finding a total delay of 23 and a half months. The Tenth Circuit considered the Barker factors, and found that the length of the delay weighed strongly in Black’s favor. The Tenth Circuit then dissected each delay, attributing portions to Black for the periods of time in which he filed motions or requested continuances and to the government for periods in which they did not vehemently prosecute Black. After carefully considering each time period, the Tenth Circuit determined that the government was responsible for about 7 months of the delay and Black was responsible for about 12 months. The Tenth Circuit next assessed whether the delays were purposeful attempts by the government to strategically position itself and agreed with Black’s concession that they were not. Next, the Tenth Circuit considered whether Black forcefully and frequently asserted his speedy trial rights, and found that only one of his speedy trial assertions was forceful. The Tenth Circuit noted that Black’s counsel’s speedy trial objections were especially weak when he remarked that he was only asserting speedy trial to preserve his previous motion. Finally, the Tenth Circuit found that Black could not show he was prejudiced by the delay. After balancing all the factors, the Tenth Circuit found that the majority weighed in favor of the government.

The Tenth Circuit remanded for resentencing but found no violation of Black’s constitutional right to a speedy trial.

Tenth Circuit: Search of Emails by Semi-Public Entity Required Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ackerman on Friday, August 5, 2016.

Walter Ackerman used his AOL account to send an email with four attachments. AOL’s server identified the hash value of one of the attachments as child pornography and forwarded the email to the National Center for Missing and Exploited Children (NCMEC). The NCMEC opened all four attachments and discovered they were all child pornography. Ackerman was indicted on charges of possession and distribution of child pornography by a federal grand jury. He pleaded guilty, reserving the right to appeal the district court’s denial of his motion to suppress the fruits of NCMEC’s investigation.

On appeal, Ackerman argued that NCMEC’s actions amounted to an unreasonable search of his email and its attachments because no one obtained a warrant or invoked a lawful basis for failing to obtain one. The Tenth Circuit first addressed whether NCMEC qualified as a governmental entity or agent and not a private party. The Tenth Circuit next questioned whether the NCMEC simply repeated the search conducted by AOL or exceeded the scope of AOL’s investigation.

The Tenth Circuit evaluated whether NCMEC is a private party or a governmental entity, noting that when a party is endowed with law enforcement powers beyond those enjoyed by a private citizen, generally police powers are engaged. The Circuit found that NCMEC’s powers extended far beyond those enjoyed by private citizens. NCMEC was created by statute to operate as a clearinghouse for missing and exploited children and to provide forensic technical assistance to law enforcement. The Circuit found that the NCMEC’s creation and functions proved it was acting as a governmental entity when it opened Ackerman’s email and viewed the attachments. The Tenth Circuit further found that even if it had determined NCMEC was a private entity, its searches may still be subject to the Fourth Amendment if the entity is acting as a government agent. The Circuit found that NCMEC was acting as an agent in this case. The Tenth Circuit rejected the government’s contention that it could reverse only if the district court clearly erred, finding that the argument advanced on appeal was a legal one regarding the definition of agency.

After determining that the NCMEC was a governmental entity or agency, the Tenth Circuit turned to whether the NCMEC’s search exceeded the scope of the search performed by AOL. The Circuit found that it did. AOL only identified one of the attached images on Ackerman’s email as child pornography, whereas NCMEC opened all four images and the email. Because NCMEC could have learned private and protected facts when it opened the email, and because Ackerman had a reasonable expectation of privacy in his email, the Tenth Circuit found that NCMEC impermissibly exceeded the scope of AOL’s intrusion.

The Tenth Circuit reversed the district court’s denial of Ackerman’s motion to suppress and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 8/5/2016

On Friday, August 5, 2016, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Flanders v. Lawrence

United States v. Smith

United States v. Oviedo-Tagle

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.