December 5, 2016

Colorado Court of Appeals: Exigent Circumstances Justified Warrantless Search of Suspect’s Mouth

The Colorado Court of Appeals issued its opinion in People v. Carr on Thursday, November 17, 2016.

Vehicle—Probable Cause—Non-Consensual Search—Mouth—Unlawful Drugs—Evidence—Suppression—Fourth Amendment.

A police surveillance team identified the vehicle Carr was riding in as possibly being involved in drug sales. Officers observed the vehicle speeding and weaving into another lane and pulled it over. The officer who approached the driver’s side of the vehicle smelled alcohol and marijuana. The officers noticed that Carr was making chewing motions with his jaw and had a golf-ball sized bulge in his cheek. He refused the officers’ commands to spit out the contents of his mouth. The officers forced open Carr’s mouth and removed ten bags of drugs, which later tested positive for cocaine. Carr was charged with various crimes. He moved to suppress all evidence resulting from the search of his mouth. The court denied his motion, and he was ultimately convicted.

On appeal, Carr argued that the nonconsensual search of his mouth violated the Fourth Amendment and the court thus erred in failing to suppress the evidence obtained during that search. In addition to probable cause for the arrest of a suspect, which was not at issue in this case, the Fourth Amendment requires the state to prove three factors to render a warrantless internal body search constitutional: (1) a clear indication that incriminating evidence will be found; (2) exigent circumstances that justify the intrusion and make it impractical to obtain a search warrant; and (3) extraction of the evidence in a reasonable manner and by a reasonable method. Here, there was a clear indication that evidence would be found because the officers believed that Carr was in a vehicle that was suspected to be involved in drug dealing; they saw a large bulge in his mouth; he refused to speak to the officers or reveal what was in his mouth and was trying to chew or swallow what was in his mouth; and the officers had experience or training that indicated that suspects would attempt to swallow drugs. Exigent circumstance justified the search because Carr was attempting to chew and swallow, and it was imperative for the officers to retrieve whatever was in Carr’s mouth to preserve evidence and keep Carr from harming himself. Finally, extraction of the evidence was reasonable. Although the officers used physical force to search Carr’s mouth, they did not force him to undergo any invasive medical procedure or apply force to his throat. The minimal risk to Carr’s health and safety and the intrusion on his privacy and dignity did not outweigh the community’s interest in retrieving the bags of drugs. Therefore, the search of Carr’s mouth did not violate his Fourth Amendment rights.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Warrant Establishes Long String of Criminal History Despite Lack of Specific Dates

The Colorado Supreme Court issued its opinion in People v. Cooper on Monday, November 21, 2016.

In September 2015, officers requested and obtained a search warrant for Lonnie Cooper’s residence and vehicles based for illegal drugs. The affidavit supporting the warrant contained information from a confidential informant about the drug activity, but did not contain any specific dates when the activity occurred. An Alamosa County magistrate signed the warrant the day it was presented, and police searched Cooper’s home, finding controlled substances, drug paraphernalia, and weapons. Cooper was charged with multiple counts.

Cooper moved to suppress the results of the search warrant, arguing that the supporting affidavit was so lacking in indicia of probable cause that no reasonable officer could, in good faith, rely on it. The trial court granted the motion. The trial court was particularly concerned about the affidavit’s “staleness,” or the lack of exact dates. The State filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.

The State argued that even if the warrant was stale and issued in error, the good faith exception to the exclusionary rule should apply. The supreme court agreed. The court focused on the “bare bones” situation where the good faith exception would not apply, namely “where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Because in this case there was considerable evidence of ongoing drug trafficking activity, an officer could have a reasonable, good faith belief that the warrant was proper.

The Colorado Supreme Court reversed the trial court’s suppression order. Justice Hood concurred, and Justice Marquez joined in the concurrence.

Tenth Circuit: Isolated Mishap with Execution Does Not Give Rise to Eighth Amendment Violation

The Tenth Circuit Court of Appeals issued its opinion in Estate of Lockett v. Governor Mary Fallin on Tuesday, November 15, 2016.

In 1999, Clayton Lockett kidnapped, raped, sodomized, and shot 19-year-old Stephanie Nieman and then had an accomplice bury her alive. He was found guilty of 19 felonies arising from the incident and was sentenced to death. He was executed in Oklahoma in 2014, using a combination of three drugs—midazolam, vecuronium bromide, and potassium chloride. The doctor and EMT had trouble starting an IV and ultimately inserted the IV into a vein in his groin area. They covered the area with a cloth so that the observers would not see Lockett’s intimate parts. Ten minutes after administering the first drug, midazolam, Lockett was declared unconscious. The executioners then administered the second and third drugs. Unexpectedly, about 15 minutes after the first drug was administered, Lockett began twitching and writhing, tried to rise from the table, uttered some words, and was grimacing in pain. The doctor checked the IV site, which had been covered so as to protect Lockett’s privacy, and discovered the IV had infiltrated so the drugs were not getting to Lockett’s veins. The doctor advised Oklahoma DOC Director Robert Patton that he believed insufficient drugs had entered Lockett’s system to cause his death. The execution was halted 33 minutes after the first drug was administered. However, 43 minutes after administering the first drug, Lockett was pronounced dead.

The Estate of Lockett filed seven claims: (1) “Eighth Amendment violation—Torture,” as to all defendants; (2) “Eighth Amendment—Using Untested Drugs and Human Medical Experimentation,” against all defendants; (3) “Eighth Amendment—Use of Compounded Drugs in Human Medical Experimentation,” against all defendants; (4) “Eighth Amendment—Human Medical Experimentation on Unwilling Prisoners,” against all defendants; (5) “Eighth Amendment—Failure to Train and Supervise,” against Warden Trammell and Director Patton; (6) Fourteenth Amendment—“Failure to Protect State-Created Rights Procedural Due Process Violation,” against all defendants; and (7) “Sixth Amendment Right to Counsel and First Amendment Access to the Court Violation,” against Warden Trammell and Director Patton. Governor Fallin, Director Patton, and Warden Trammell filed a motion to dismiss under F.R.C.P. 12(b)(6), as did Dr. Doe. Both motions asserted qualified immunity among other defenses. The district court granted both motions to dismiss on qualified-immunity grounds and sua sponte dismissed the claims against the other Doe defendants. The district court found the Estate had failed to prove defendants violated clearly established law.

On appeal, the Tenth Circuit evaluated whether the defendants were entitled to qualified immunity, based on whether the Estate asserted facts sufficient to show a violation of a clearly established right. As to Dr. Doe, since he was a private party, the Tenth Circuit also had to find that he was entitled to government qualified immunity. The Tenth Circuit found that he was. A government employee in the same position as Dr. Doe would have been entitled to qualified immunity, and the Tenth Circuit found that Dr. Doe was, too, finding “Dr. Doe is entitled to assert qualified immunity because the purposes of qualified immunity support its application here: carrying out criminal penalties is unquestionably a traditional function of government, exactly the sort of activities that Richardson reasoned qualified immunity was meant to protect.”

Turning to the Estate’s claims, the Tenth Circuit first addressed its claims of torture and deliberate indifference. The Tenth Circuit noted a single reference in the torture claim to “deliberate indifference,” although there were several references to torture. Although the Tenth Circuit would generally find that the deliberate indifference claim was waived, it addressed the claim because Appellees suffered no prejudice from the claim. The Tenth Circuit noted a deficiency in that the Estate did not account for how cruel and unusual punishment claims operate in the death penalty context. Because the Supreme Court has found capital punishment constitutional, and some pain and suffering is inherent in capital punishment, there must be an additional showing of torture or needless addition of pain in order for an Eighth Amendment violation to stand. The Tenth Circuit noted that the Supreme Court’s death penalty opinions recognize that executions can go awry, and that an isolated mishap will not rise to the level of an Eighth Amendment violation. The Tenth Circuit found that Lockett’s infiltrated vein, coupled with the unusual difficulty securing an IV site, constituted precisely the sort of “isolated mishap” contemplated by the Supreme Court. Although the infiltrated IV could have been discovered sooner had the IV site not been covered, the covering was done to protect Lockett’s privacy, not in an attempt to cause pain and suffering.

The Estate also asked the Tenth Circuit to take judicial notice of news articles about Lockett’s botched execution, as well as Justice Sotomayor’s dissent in Glossip v. Gross, in which she discussed Lockett’s execution. The Tenth Circuit declined to take judicial notice of the news articles or the dissent. The Circuit found it inappropriate to take judicial notice of the opinions contained in the news articles, noting that judicial notice is reserved for facts beyond debate. The Tenth Circuit also declined to take judicial notice of Justice Sotomayor’s dissent, because it may only take judicial notice of the fact of the opinion and not its contents.

The Estate also claimed that the defendants violated Lockett’s Eighth Amendment rights by being deliberately indifferent to his serious medical need to die as quickly as possible. The Tenth Circuit noted that, at the same time, the Estate acknowledged that the EMT and doctor had difficulty placing an IV, and did not have alternative veinous access. The Estate argued that the appellees had no plan to respond to or prevent Lockett from suffering a prolonged death. The Tenth Circuit did not find deliberate indifference on the part of the appellees. The Tenth Circuit affirmed the district court’s decision that there was no violation of a clearly established right. The Tenth Circuit further found the appellees violated no clearly established law despite Lockett suffering pain during his execution. The IV infiltration was an “isolated mishap,” not something designed to cause additional pain. The Tenth Circuit noted that Oklahoma has changed its execution procedures to conform to the Supreme Court’s approved procedure in Baze, so the situation is unlikely to arise again in another execution.

The Tenth Circuit next addressed the Estate’s claims that Defendants Patton and Trammell failed to promulgate policies that would prevent Lockett’s execution from violating the Eighth Amendment. The Tenth Circuit found that the Estate’s reliance on the requirements enumerated in Baze was misplaced; because some of the procedural safeguards were in place, and because Oklahoma adopted more procedural safeguards after Lockett’s execution, the Tenth Circuit found no error. The Tenth Circuit noted that the Estate’s claims contained only a high level of generality, which was impermissible.

The Tenth Circuit also dismissed the Estate’s aggregation claim. Because the Estate did not set forth clearly established law to support its aggregation claim, the Tenth Circuit dismissed it. The Tenth Circuit also found no procedural due process violation because Lockett had an opportunity to challenge the drug protocol and failed to do so. Similarly, the Tenth Circuit found that Lockett had no right to counsel during the execution.

The Tenth Circuit affirmed the district court. Judge Moritz wrote a separate concurrence; she would have declined to reach the constitutional issues as to any of the Estate’s questions.

Tenth Circuit: Facts Existed to Support District Court’s Denial of Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Durkee v. Minor on Monday, November 14, 2016.

James Durkee was an inmate at the Summit County Corrections Center in Colorado. After being threatened by a notoriously violent inmate, Ricky Michael Ray Ramos, Durkee expressed concern about Ramos’ aggression and a deputy issued an incident report stating that Durkee and Ramos were not allowed to attend any programs together, be in the hallways together or in passing, or be in the booking area together. The report was signed by the jail staff, including Defendant Hochmuth. On December 28, 2012, Plaintiff Durkee was in the jail’s professional visitation room, when Ramos was escorted into the booking area by Hochmuth. Plaintiff saw both Defendant and Ramos, and Ramos saw plaintiff, but Hochmuth reported that he did not see plaintiff despite the large glass window between the rooms. When defendant removed Ramos’ shackles, he ran into the visitation room and attacked plaintiff, leaving him with severe facial fractures.

Plaintiff sued Hochmuth and the Summit County Sheriff, Defendant Minor, in their individual capacities under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights. Both defendants moved for summary judgment based on qualified immunity. The district court denied summary judgment and the defendants appealed.

On appeal, the Tenth Circuit evaluated whether the district court found facts sufficient to support plaintiff’s claim that the defendants violated clearly established law. The Tenth Circuit found that, as to Hochmuth, the plaintiff had to prove sufficient facts that the defendant knew of and disregarded a substantial risk to plaintiff. Hochmuth does not dispute that he knew Ramos posed a substantial risk of harm to plaintiff “generally,” but argued he did not know plaintiff was in the unlocked room adjacent to the booking room. The Tenth Circuit noted that the success of the defendant’s defense may turn on whether the jury finds his testimony credible that he did not see plaintiff in the next room.

As to Minor, the Tenth Circuit did not find facts sufficient to prove that in his individual capacity as the director of the jail he knew of and disregarded a substantial risk of harm to plaintiff. The Tenth Circuit found that plaintiff could not show Minor’s direct personal responsibility for the harm suffered by plaintiff. The Tenth Circuit could not find a policy dilemma, since unshackling inmates in the booking area had not been a problem for anyone prior to the incident with plaintiff.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.

Colorado Court of Appeals: Impoundment of Vehicle Unlawful Where Driver Was Not Arrested

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, October 20, 2016.

Carl Brown was pulled over for failing to make a complete stop at a stop sign. The officer who pulled him over discovered Mr. Brown was driving with a suspended license. The officer decided to issue Mr. Brown a summons, but not arrest him. The officer then impounded Mr. Brown’s car and conducted an inventory search, which revealed drugs. At that time, Mr. Brown was arrested, charged with, and ultimately convicted of possession of a controlled substance (over two grams) and possession of a controlled substance with intent to distribute.

On appeal, Mr. Brown argued that the inventory search violated the Fourth Amendment, and the contents of that search should therefore have been suppressed. Mr. Brown argued several other points of error, but because the Colorado Court of Appeals agreed with him that the initial search was illegal, it did not address his remaining contentions.

The court evaluated the impoundment statute, which allows for police to impound a vehicle when the impoundment occurs to further public safety, community caretaking functions, or to remove disabled or damaged vehicles. The officer who pulled Mr. Brown over testified that Mr. Brown’s vehicle was off the road, not blocking traffic. He testified that he impounded the vehicle because Mr. Brown’s license was suspended. The court found this insufficient to survive a Fourth Amendment analysis. The court noted that because the officer decided not to arrest Mr. Brown, there was no reason why Mr. Brown could not have stayed with his vehicle and either called a friend to drive the car or called a tow truck himself. Because the officer did not give Mr. Brown the choice of whether to take care of the vehicle himself or have the police impound it, the seizure was unlawful in violation of the Fourth Amendment.

The court of appeals reversed and remanded with orders for the trial court to grant the motion to suppress and for proceedings consistent with their opinion.

Colorado Court of Appeals: Cell Phone Records Created in Regular Course of Business are Nontestimonial

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, October 20, 2016.

Two men, one masked and one not masked, held up a fast-food restaurant at gunpoint. The unmasked man was identified in surveillance video as David Maestas. Police found a car nearby that was registered to Maestas’ wife, and in the car was a cell phone and pair of jeans consistent with those used in the robbery. DNA on the waistband of the jeans was traced to defendant, and several cell phone calls were made to a number listed in the phone as “Ray’s mom.” Defendant was tried separately from Maestas, and a jury convicted him of aggravated robbery. He was adjudicated a habitual offender.

Defendant appealed, arguing three points of error: (1) his Confrontation Clause rights under the U.S. and Colorado Constitutions were violated by admission of the cell phone records; (2) he was denied a fair trial because the prosecutor misstated the evidence; and (3) during the habitual offender trial, his Confrontation Clause rights were violated by admission of sentencing and prison records.

The Colorado Court of Appeals first addressed Defendant’s contention that admission of the cell phone records violated his Confrontation Clause rights. The court examined Crawford v. Washington and found that in order to be considered testimonial, the records must have been made in anticipation of litigation. The court also found a Tenth Circuit opinion dispositive, United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011). In Yeley-Davis, the Tenth Circuit determined that cell phone records kept in the course of regular business by the cell phone company were nontestimonial. The Colorado Court of Appeals found this reasoning persuasive. Although the printout of the records was ultimately included in evidence, the cell phone company created the records in the ordinary course of business and not for litigation purposes. Defendant also contended that his Colorado constitutional rights were violated because there was no showing that the custodian of the records was unavailable. The court of appeals disagreed, citing People v. Dement, 661 P.2d 675 (Colo. 1983). The supreme court’s Dement test provides that the unavailability requirement is subject to an exception when the utility of trial testimony is very remote. Because there would be little practical effect of having the cell phone company’s custodian of records testify, the court found no error.

Defendant also contended the prosecutor impermissibly informed the jury that it was impossible that someone other than Defendant had contact with the jeans. The court of appeals disagreed with Defendant’s characterization of the prosecutor’s statements. The court found that, although the prosecutor’s statements could have been worded more artfully, he did not tell the jury with certainty that the jeans came from Defendant. The court found no error. The court also found no cumulative error, since it found no error at all.

Defendant argued that, during the habitual offender phase of his trial, the court erroneously allowed evidence of sentencing and prison records without requiring the presence of the record custodian. The court of appeals found this contention analogous to Defendant’s argument about the cell phone records and found no error for the same reason.

The court of appeals affirmed the judgment.

Colorado Supreme Court: Charges Requiring Different Evidence Arising from Same Incident Do Not Violate Double Jeopardy

The Colorado Supreme Court issued its opinion in Schneider v. People on Monday, October 17, 2016.

Sentencing—Constitutional Law.

Schneider sought review of the court of appeals’ judgment affirming his convictions and consecutive sentences for two counts of sexual assault. The jury returned guilty verdicts on one count of sexual assault of a physically helpless victim and another count of sexual assault by causing submission of a victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will, based on evidence of a single, continuous penetration of the same victim. The trial court imposed mandatory consecutive sentences for conviction of separate crimes of violence arising out of the same incident.

The court of appeals upheld the two sexual assault convictions against challenges of jeopardy and merger, on the grounds that defendant was convicted of violating two separate statutes. It also upheld the trial court’s order of consecutive sentences, on the grounds that consecutive sentences were mandated by statute unless both convictions were supported by identical evidence, which it reasoned could not be the case where the evidence required to prove each sexual assault charge was inconsistent with that required to prove the other.

The supreme court affirmed the judgment of the court of appeals, although on slightly different grounds. Although C.R.S. § 18-3-402 proscribes a single crime of “sexual assault,” which can be committed in either of the two ways charged in this case, the evidence at trial was sufficient to support a jury finding that defendant committed that single crime of “sexual assault” twice against the same victim.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Mental Health Assessment Not Court-Ordered Where Defendant Agreed to Participate

The Colorado Supreme Court issued its opinion in Higgins v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist– Patient Privilege—Constitutional Law.

This companion case to People v. Johnson, 2016 CO 69, raises two questions. First, does a trial court have statutory authority to order a juvenile charged as an adult to undergo a state-administered mental health assessment for a reverse-transfer proceeding? The supreme court answered that question in the negative in Johnson, but does not answer that question here because it is hypothetical—the question is not based on the facts of this case. Second, is a trial court required, before a mental health assessment, to provide a juvenile with warnings based on the Fifth Amendment right against self-incrimination? The court does not answer that question either, because (1) Higgins consented to the evaluation while represented by counsel, and (2) any claims that ineffective assistance of counsel vitiated Higgins’s consent are premature. Therefore, the court vacated the order to show cause and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Consent to Search Truck Was Valid so Suppression Unnecessary

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, September 26, 2016.

Fourth Amendment—Traffic Stops—Reasonableness of Investigatory Detention—Voluntariness of Consent to Search.

The Supreme Court reversed the trial court’s order suppressing drugs found in defendant’s truck and defendant’s incriminating statements made to police after they discovered the drugs. Defendant was pulled over for a traffic violation and detained after he consented to a police search of his truck. The Supreme Court concluded that this investigatory detention, which resulted from defendant’s authorization of the search, was reasonable. After considering the totality of the circumstances, the Court also concluded that defendant’s consent to the search was voluntary and the search was lawful. Accordingly, the Court determined that no prior illegality tainted defendant’s incriminating statements. Therefore, neither the drugs nor the statements should have been suppressed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Wife Can Initiate Police Interview After Invocation of Right to Counsel

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, September 22, 2016.

Sexual Assault—Custodial Interrogation—Miranda—Right to Counsel—Third Party.

The police executed a search warrant on defendant’s home after the victim reported that defendant had sexually assaulted her. During the search, they recovered a weapon, and defendant was arrested on the charge of possession of a weapon by a previous offender. Defendant promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. Two days later, a police detective conducted another interview of defendant during which defendant admitted to three instances of sexual contact with the victim. An audio recording of defendant’s second police interview was admitted at trial. Defendant was convicted of multiple counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police. To establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have “a generalized discussion about the investigation,” and (2) the police confirmed with the suspect that he had so indicated. Here, the detective’s testimony was clear that defendant’s wife informed him that defendant had questions about the investigation. Further, the detective knew the caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation. The detective then called defendant at the jail and confirmed that defendant desired to speak with him. Therefore, defendant “adequately evinced a willingness and a desire to” reinitiate communication with the police through a third party and there was no error in admitting his inculpatory statements.

Defendant also contended that the statements he made in the second interview were not voluntary and that the court erred in not holding a hearing on the issue of voluntariness. The court of appeals did not reach the merits of this issue because defendant moved to suppress the statements solely on reinitiation grounds and thus waived the voluntariness claims.

Defendant also argued that reversal is required because the recording of the interview admitted at trial included the detective’s assertions that he believed the victim and did not believe defendant’s denials of the victim’s allegations, and because the detective testified that he did not believe defendant. The court discerned no plain error in the admission of this evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Residual “Crime of Violence” Definition in INA is Unconstitutionally Vague

The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.

Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”

On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.

The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.

The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.

The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.