August 22, 2017

Colorado Court of Appeals: Petition for Mandamus Relief Should Have Been Transferred to Executive Director

The Colorado Court of Appeals issued its opinion in Gandy v. Raemisch on Thursday, August 10, 2017.

C.R.C.P. 106—Dismissal—Transfer of Canadian Prisoner to Canada to Serve Life Sentence—Mandamus Relief.

Gandy is a Canadian citizen serving a habitual criminal life sentence in the custody of the Colorado Department of Corrections (DOC). Gandy applied numerous times to DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. In 2016, the DOC prisons director (director) denied Gandy’s 2015 application in writing. The director stated that under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. The director did not forward Gandy’s application to DOC’s executive director.

Gandy filed a complaint in district court seeking mandamus relief under C.R.C.P. 106, requesting the court to direct DOC to “process and submit” his application for transfer to the U.S. Department of Justice and asking for nominal punitive damages for alleged violations of his constitutional rights. The court granted defendants’ motion to dismiss for failure to state a claim on which relief can be granted.

On appeal, Gandy contended he was entitled to mandamus relief, arguing that he was entitled to final review of and decision on his transfer application by the executive director.  DOC’s transfer application process imposed a duty on the director to process Gandy’s application and then send it to the executive director for his final review and decision. Because this duty is clear, mandamus relief was appropriate.

Gandy also argued that the two-year reapplication waiting period was improperly imposed. The Colorado Court of Appeals agreed, finding that DOC regulations do not require or provide for the imposition of a two-year waiting period before permitting an offender to reapply.

Gandy further argued that the district court erred when it dismissed his constitutional claims for failure to state a claim because the regulation conflicts with federal treaties and thus violates the Supremacy Clause. However, the court found no conflict between DOC regulations and international treaties.

Gandy next argued that defendants discriminated against him by refusing to process his transfer request due to his national origin. The court agreed with the district court that Gandy did not plead any facts supporting this allegation.

The judgment dismissing Gandy’s constitutional claims was affirmed. The judgment dismissing the complaint seeking mandamus relief was reversed, and the case was remanded with directions to enter an order directing the director to forward the transfer application and recommendations to the executive director for final review and decision.

Summary available courtesy of Colorado Lawyer.

Colorado Court of Appeals: Multiple Counts of Identity Theft Proper for Multiple Instances with Same Victim

The Colorado Court of Appeals issued its opinion in People v. Allman on Thursday, August 10, 2017.

Identity Theft—Forgery—Theft from an At-Risk Adult—Merger—Sentence—Concurrent—Probation.

Using an alias, Allman presented himself to the victim as a businessman who had recently moved from Washington to Colorado. Allman moved into the victim’s basement, gained her trust, and when the victim left on vacation, Allman accessed the victim’s bank accounts and stole money from them. Allman also opened several credit cards in the victim’s name, moved out of her home, took her car, and obtained over $40,000 of credit in her name. Allman was convicted of eight counts of identity theft, two counts of forgery, one count of aggravated motor vehicle theft, and one count of theft from an at-risk adult. He was sentenced consecutively for some counts and concurrently for others.

On appeal, Allman argued that the convictions for identity theft are unconstitutionally multiplicitous and must merge into one conviction and sentence for that offense because identity theft is a continuing crime where, as here, the identity of only one victim has been stolen. The Colorado Court of Appeals concluded that the crime of identity theft under C.R.S. § 18-5-902(1)(a) is not a continuing course of conduct and, therefore, each discrete act of identity theft under that subsection is a separately chargeable offense.

Allman also appealed a number of sentencing issues. He first contended that his sentences for the identity theft counts should merge. The court rejected this argument based on its finding that identity theft is not a continuing crime. Second, Allman alternatively contended that the identity theft sentences should run concurrently because they are based on identical evidence. Because Allman’s eight convictions for identity theft were based on factually distinct evidence, the trial court was not required to impose concurrent sentences. Third, he argued that his sentence for two counts of forgery should run concurrently to each other and to one of his sentences for identity theft because he used the same credit card for all three offenses. The record is clear that neither forgery offense is factually identical to the other, nor is either of them factually identical to the identity theft count. Thus the trial court was not required to impose concurrent sentences for these offenses. Fourth, Allman argued that he was illegally sentenced to both the custody of the Department of Corrections and probation. Where, as here, a court sentences a defendant for multiple offenses in the same case, it may, within its discretion and subject to statutory limitations, impose imprisonment for certain offenses and probation for others, including probation consecutively to a period of incarceration. Fifth, Allman contended that his sentence for theft from an at-risk adult should run concurrently to his other sentences because the jury was not required to make a specific finding regarding exactly what Allman stole from the victim as the basis for that count. Under the circumstances of this case, the sentencing court was not required to order a concurrent sentence for the theft conviction.

The judgment and sentence were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Criminal Mischief is Not Lesser Included Offense of First Degree Arson

The Colorado Court of Appeals issued its opinion in People v. Welborne on Thursday, August 10, 2017.

First Degree Arson—Criminal Mischief—Lesser Included Offense—Res Gestae Evidence—Impeachment—CRE 608(b)—Witness Disclosure.

Welborne and his mother set fire to the house in which they lived and filed false insurance claims based on the fire. Welborne was convicted and sentenced to six years in prison for arson, six years for criminal mischief, six years for attempted theft, and eight years for theft—all to be served concurrently.

On appeal, Welborne contended that the trial court erred by admitting evidence of his earlier insurance claims to the same company. The prior false insurance claims involved the same company, related to a material fact, and were logically relevant to the charges. Evidence of Welborne’s false but fruitful insurance claims was highly probative of whether he acted to deceive the same insurance company with the intent to permanently deprive it of money. The trial court instructed the jury on the limited purposes of the evidence. The evidence was properly admitted under CRE 404(b) and as res gestae evidence.

Welborne further contended that the trial court committed reversible error by permitting the prosecutor to impeach him with his California theft conviction. The trial court acted within its discretion in admitting evidence of Welborne’s prior theft offense under Rule 608(b) as probative of truthfulness or dishonesty. Although the prosecutor presented evidence of the conviction rather than the underlying facts, any error was harmless.

Welborne also argued that the trial court erred by barring him from calling a witness to impeach the testimony of his former girlfriend. Disclosure of this witness was not timely, and Welborne’s offer of proof did not show that the testimony was admissible or that the witness would impeach the girlfriend’s testimony that Welborne had started the fire.

Finally, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge. Because criminal mischief requires proof that the acts were committed in a single criminal episode, while first degree arson does not, criminal mischief is not an included offense of first degree arson.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Urinalysis Test Results Not “Public Record” for Forgery Statute Purposes

The Colorado Court of Appeals issued its opinion in People v. Carian on Thursday, August 10, 2017.

Forgery—Urinalysis Results—Attempt to Influence a Public Servant—Probation—Res Gestae Evidence—Prosecutorial Misconduct.

Carian was on probation for possession of a controlled substance, and mandatory drug tests were a condition of his probation. Carian completed some tests, but missed others and also returned tests with positive results. When Carian’s probation officer served him with a revocation complaint for various probation violations, Carian handed her fraudulent urine drug test results from Wiz Quiz, an unapproved urinalysis facility. Carian was convicted of forgery and attempting to influence a public servant.

On appeal, Carian contended that the evidence was insufficient to convict him of forgery under C.R.S. § 18-5-102(1)(d) because the urinalysis results at issue were not a “public record” or “an instrument filed or required by law to be filed or legally fileable in or with a public office or public servant.” While the urinalysis results from Wiz Quiz were “instrument[s]” within the reach of the statute, they were not filed, required by law to be filed, or legally fileable, thus the evidence did not support his forgery conviction.

Carian also contended that the trial court erred when it admitted evidence under the doctrine of res gestae showing that he had been previously convicted of a drug offense. Regardless of whether the admission of such evidence was error, it did not substantially influence the verdict or affect the fairness of the proceedings regarding his conviction for attempting to influence a public servant. Thus, any error in its admission was harmless.

Carian further contended that the prosecutor committed misconduct, during both his opening statement and his rebuttal closing, by asking the jury to hold Carian accountable for wasting public resources and “squandering” the opportunity to rehabilitate himself on probation. Although the prosecutor’s statements were improper, the admission of such statements does not warrant reversal under either plain or harmless error review.

The judgment on the forgery conviction was vacated, and the judgment on attempt to influence a public servant conviction was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Ordinary Person Would Not Be Aware of Specifics of IP Address and ISP Locating

The Colorado Court of Appeals issued its opinion in People v. Garrison on Thursday, August 10, 2017.

Email—Internet Protocol Address—Internet Service Provider—Expert Testimony—Lay Testimony—Police Officers—Continuance—CRE 702.

Garrison had an affair with the victim’s wife. After the affair ended, Garrison and his wife set up through Google a Gmail account in the victim’s name. Using that account, they sent themselves derogatory and threatening emails. Based on these emails, Garrison and his wife made police reports against the victim and provided related documents to the police. They sought a protection order against the victim and testified about the emails at the hearing. The police filed charges against the victim. When it was later determined that Garrison and his wife had set up the Gmail account, charges against the victim were dismissed, and the Garrisons were charged. At trial police officers gave testimony about Internet Protocol (IP). Garrison was convicted of first degree perjury, attempt to influence a public servant (three counts), conspiracy to attempt to influence a public servant, possessing a defaced firearm, and felony menacing.

On appeal, Garrison first contended that the trial court erred in refusing to grant his request for a continuance of the trial. The trial court did not abuse its discretion in denying him a continuance, and Garrison was not prejudiced because, as discussed below, he is entitled to a new trial on his convictions related to the IP address testimony.

Garrison also argued that the trial court abused its discretion in allowing the prosecution to present expert testimony regarding tracing IP addresses through the lay testimony of police officers. Where an officer’s testimony is based not only on his perceptions and observations of the crime scene but also on specialized knowledge or experience, the officer must be properly qualified as an expert. The concept of an email transmission including an IP address, which can be linked to an Internet service provider (ISP), and in turn traced to the physical location of a particular ISP customer, is not within the knowledge or experience of ordinary people. Thus, because some of the police testimony on direct examination was based on particular experience and specialized knowledge within the scope of Rule 702, the trial court abused its discretion in admitting this portion of the testimony as lay testimony. The error was not harmless because this information was central to the prosecution’s case on the charges of first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant. The charges of possessing a defaced firearm and felony menacing were unrelated to IP addresses.

The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Statement She Was Sorry Sufficient Evidence to Prove Guilt

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, July 27, 2017.

Theft—Evidence—C.R.S. § 18-4-401(4)(a) —Jury Interrogatories—Lesser Included Offense.

Defendant was treasurer of the Bennett Elementary School Parent, Teacher, and Student Association (PTSA). The PTSA held the Believe Fundraiser, and defendant failed to deposit all of the proceeds from the fundraiser into the PTSA’s bank account. The verdict form required the jury to find whether defendant was guilty of theft (two or more within six months) for cash taken from three different fundraisers and instructed the jury to answer three interrogatories. The jury found defendant guilty, but it answered yes to only the Believe Fundraiser interrogatory.

On appeal, defendant contended that the evidence was insufficient to convict her of theft from the Believe Fundraiser. Based on evidence that defendant told the PTSA secretary that she had deposited $19,760.65 into the PTSA account when only $16,473.21 was actually deposited, and defendant’s statement later to the secretary that she was sorry and wanted to make it right, a reasonable person could conclude that defendant knowingly retained funds from the Believe Fundraiser and intended to permanently deprive the PTSA of the value of the funds.

Defendant also contended that the trial court erred in rejecting her proposed instruction paragraph for the verdict form. C.R.S. § 18-4-401(4)(a) required the prosecution to prove all of the thefts aggregated into a single count. Because the jury only answered yes to one of the interrogatories, its verdict conflicts with the statute. Therefore, the jury improperly convicted defendant of aggregated theft without finding that she committed all three of the thefts aggregated in one count. But a single act of theft is a lesser included offense of aggregated theft under C.R.S. § 18-4-401(4)(a), and the prosecution proved the elements of the lesser included offense.

Defendant further contended that the trial court erred in admitting the PTSA secretary’s testimony. However, the PTSA secretary properly gave lay opinion testimony under CRE 701.

The judgment of conviction for theft under C.R.S. § 18-4-401(4)(a) was vacated and the case was remanded to the trial court with directions to enter a conviction for a single count of theft under C.R.S. § 18-4-401(1) and (2)(f).

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence was Sufficient to Prove Money Laundering Convictions

The Colorado Court of Appeals issued its opinion in People v. Butler on Thursday, July 27, 2017.

Money Laundering—Evidence—Jury Instructions—Colorado Organized Crime Control Act—Complicity Theory.

Schaner, through Just Computers, purchased stolen items from individuals and then resold the items. Defendant, who was the assistant manager in charge of the front part of the store, assisted in these transactions. Defendant was convicted of two counts of money laundering and a violation of the Colorado Organized Crime Control Act (COCCA) based on two predicate acts of money laundering.

On appeal, defendant contended that there was insufficient evidence to support his two convictions of money laundering. The evidence at trial showed that Schaner knew that much of the merchandise he was buying and reselling was acquired illegally and that Schaner’s reselling of the unlawfully obtained goods was designed to conceal the true nature of the ownership of the goods and the money obtained from the sale of the goods. Schaner’s substantial transfers of money to employees’ personal accounts, with the understanding that they would return the money to him in cash, created a strong inference that those transactions were designed to conceal the true source of the goods being sold and the crimes committed. And the commingling of the funds obtained from illegal sources with the funds of the legitimate business operations of Just Computers supports an inference that Schaner was attempting to conceal the true nature of the source of the funds, which was from the stolen merchandise and return cards. Further, there was sufficient evidence to show that defendant intentionally aided, abetted, or encouraged Schaner with the money laundering by purchasing return cards, checking the value of the cards, storing and shipping the cards and merchandise, creating Internet posts advertising the sale of the cards and merchandise, and receiving money transfers from Schaner into his PayPal account and giving cash to Schaner. Therefore, there was sufficient evidence in the record to support defendant’s convictions as a complicitor in Schaner’s money laundering.

In asserting that the evidence was insufficient, defendant further argued that he was not present for the predicate acts and therefore cannot be found guilty based on those transactions. Defendant’s physical absence from any given purchase by Schaner does not negate his culpabiliy for the offenses. There was substantial and sufficient evidence to find that defendant intended to aid, abet, or encourage Schaner to commit money laundering and defendant knew of the circumstances surrounding his complicity in these crimes.

Defendant also asserted that the trial court erred by omitting the statutory definitions in the elemental jury instruction for money laundering. The instruction for money laundering substantially tracked the language of the statute, and the language was clear. Also, the terms “conducts or attempts to conduct a financial transaction,” “financial transaction,” and “transaction” did not take on any technical or particular meanings beyond their ordinary and common understandings and were unlikely to be misunderstood by the jury so as to require further definition. The instructions given adequately informed the jury of the elements of money laundering, and there was no reasonable probability that the jury reached its verdict on money laundering as a result of being improperly instructed. Any imperfections did not rise to the level of plain error.

Lastly, the court of appeals rejected defendant’s assertion that his COCCA conviction must be reversed. Because the evidence was sufficient to support defendant’s money laundering convictions, the prosecution proved the two requisite predicate acts to support defendant’s COCCA conviction.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Cumulative Effect of Numerous Errors Required Reversal

The Colorado Court of Appeals issued its opinion in People v. Stewart on Thursday, July 27, 2017.

Felony Menacing—Obstructing a Peace Officer—Witness—CRE 611—CRE 612—CRE 404(b)—Jury Instruction—Request for Continuance—Cumulative Effect of Errors—Prejudice.

Inebriated, defendant took a cab from a friend’s house and refused to pay his $4.85 cab fare. Defendant jumped from the cab and, chased by the cab driver and a nearby police officer, ran to his apartment, which was surrounded by a six-foot privacy fence that enclosed defendant’s private patio and was secured by a locked gate. At least one officer scaled the fence and opened the gate for remaining officers to enter. After officers breached the fence, they saw defendant behind his window blinds with a plastic BB gun, which they believed to be real. Officers opened fire and defendant suffered two gunshot wounds. A jury convicted defendant of felony menacing and obstructing a peace officer.

On appeal, defendant raised evidentiary errors. The court of appeals determined that the trial court erred by allowing the prosecution to improperly lead a witness, in violation of CRE 611(c). The court’s failure to follow the appropriate procedure to refresh recollection also violated CRE 612. This error was prejudicial, but harmless in isolation. The trial court further erred by allowing the prosecution to present evidence that defendant previously hid from the police, in violation of CRE 404(b). This evidence was irrelevant to any issue at trial other than the habit and character of defendant; it prejudiced defendant and affected the fairness of the proceedings.

Defendant further argued that the trial court erroneously instructed the jury concerning exigent circumstances. The court was unable to determine the relevance of the instruction, and it appeared that the instruction was not an accurate or complete statement of the law. This error alone did not require reversal, but it contributed to the cumulative effect of the other errors.

Defendant also argued that the trial court erred by denying his request for a continuance to subpoena the cab driver. Refusing the continuance prejudiced defendant by denying him a key witness, affecting the fairness of the trial proceedings.

Considered in isolation, each of the errors might be viewed as harmless, but in the context of a single trial, the cumulative effect of the errors requires reversal of defendant’s conviction.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Within-Guidelines Sentence Presumably Reasonable Even if it Contains Serious Flaws

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wireman on February 28, 2017.

The issue in this case was whether the Defendant’s sentence was procedurally reasonable when the district court failed to address Defendant’s non-frivolous arguments for a downward variance from his within-Guidelines sentence.

Defendant pled guilty to five counts of distributing child pornography and one count of possessing child pornography. Defendant had also emailed a friend non-pornographic images of children that he personally knew and claimed at the time he had sexually abused. Defendant had prior sexual offenses that involved children, including being convicted of five different sexually based crimes involving minors, four of which included physical sexual conduct with a minor.

Section 2G2.2 of the United States Sentencing Guidelines (USSG), set Defendant’s base level offense for his crimes and applied several other Specific Offense Characteristics (SOCs) under § 2G2.2 to Defendant, which increased his offense level. These SOCs included increases because (i) the material involved prepubescent minors; (i) he distributed material involving the sexual exploitation of a minor; (iii) the material involved sadistic or violent depictions; (iv) he engaged in a pattern of activity involving sexual abuse or exploitation of a minor; and (v) because he used a computer to distribute the material. The corresponding USSG range for Defendant’s crimes and the added SOCs was 210-262 months’ imprisonment.

In his sentencing memorandum to the district court, Defendant argued that he was entitled to a downward variance from the USSG range because § 2G2.2 was inherently flawed. Defendant argued that the Sentencing Commission did not depend on empirical data when drafting § 2G2.2, that the range for his crimes was “harsher than necessary,” and that the SOCs in § 2G2.2 were utilized so often that they applied in nearly ever child-pornography case and therefore fail to distinguish between various offenders. The district court never specifically mentioned this memorandum at sentencing, but alluded to it.

The district court ultimately sentenced Defendant to concurrent terms of 240 months’ imprisonment on each of the six counts against him. The district court addressed the personal nature of the non-pornographic images the Defendant emailed to his friend as well as Defendant’s prior criminal history. After handing down the sentence, the district court asked Defendant if they had “anything further,” to which Defendant’s counsel stated that they did not.

On appeal, Defendant claimed that his sentence was procedurally unreasonable because the district court did not adequately address his critiques of § 2G2.2. Because Defendant did not contemporaneously object in the district court to the method by which the district court arrived at a sentence, including that the sentencing court failed to explain adequately the sentence imposed, the Tenth Circuit applied the plain error standard of review, rather than de novo review. The Tenth Circuit explained that it finds plain error only when there is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

The Tenth Circuit first addressed the first prong of the plain error standard, whether the district court committed error. The Tenth Circuit first noted that a district court must explain its reasons for rejecting a defendant’s non-frivolous argument for a more lenient sentence. Further, the Tenth Circuit held that Defendant’s critiques of § 2G2.2 were non-frivolous. In fact, the Tenth Circuit addressed how many of its sister circuit courts, along with itself, have described arguments criticizing § 2G2.2 as “quite forceful.”

However, the Tenth Circuit stated the principle that whether a district court can functionally reject or instead must explicitly reject a defendant’s arguments depends on whether the sentence imposed is within or outside of the USSG range. If the sentence is varied upwards of the USSG range, the district court must specifically address and reject the defendant’s arguments for a more lenient sentence. If it is within the USSG range, then the district court does not need to specifically address and reject each of the defendant’s arguments, so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the USSG sentence actually conforms in the circumstances to the statutory factors.

In the Tenth Circuit, a within-guideline range sentence by the district court is entitled to a rebuttable presumption of reasonableness on appeal. The Tenth Circuit stated that this was true even if the USSG at issue arguable contains serious flaws or lacks an empirical basis.

In this case, the Tenth Circuit held that the district court was at least aware of Defendant’s arguments because the district court explicitly referenced Defendant’s sentencing memorandum at the sentencing hearing. Because the district court’s ultimate sentence was within the USSG range, the Tenth Circuit held that the district court did not need to explicitly reject Defendant’s arguments. The district court needed only to indicate that it did not rest on the guidelines alone, which the district court did. The district court stated that it relied on the USSG as well as Defendant’s extensive criminal history and the personal nature of the emailed images in determining Defendant’s sentence. The Tenth Circuit held that this acted as a functional rejection of Defendant’s policy disagreement with § 2G2.2. Therefore, the Tenth Circuit held that the district court did not err by not explicitly responding to Defendant’s arguments for a more lenient sentence. Because the district court did not err, the Tenth Circuit did not address the three remaining prongs of the plain error review.

The Tenth Circuit affirmed the district court’s sentence of Defendant.

Tenth Circuit Judge McKay wrote a concurrence to this decision. Judge McKay expressed his view that precedence requires a district court rejecting a defendant’s non-frivolous arguments to provide at least a general statement of its reasons for rejecting such arguments. If the defendant’s arguments are that the USSG reflect an unsound judgment, Judge McKay states that the sentencing judge should go further to explain why he rejected those arguments. Here, the district court did not do as much.

Further, Judge McKay questioned the wisdom of applying the “reasonable” presumption to within-Guidelines sentences, regardless of a particular Guideline’s alleged lack of empirical support. The Sentencing Commission did not use an empirical approach when developing § 2G2.2, and therefore Judge McKay believes that the Tenth Circuit should not presume the sentence’s reasonableness. Regardless, he agrees that the Majority followed the rules of the Tenth Circuit in applying the “reasonable” presumption as it stands.

Judge McKay believed that the district court erred, but he concurred in judgment because the Defendant still could not satisfy the requirement that the error affected his substantial rights. There was nothing on the record to suggest that the district court would have imposed a different sentence even if he explicitly considered Defendant’s arguments.

Tenth Circuit: Jury Instructions Sufficient to Apprise Jury of Elements of Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wright on Tuesday, February 21, 2017.

Bruce Carlton Wright was convicted on one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1349 and 1344, and on eleven counts of bank fraud in violation of 18 U.S.C. § 1344. Wright was sentenced to thirty-three months imprisonment and ordered to pay restitution to the bank involved. Wright appealed, claiming the district court erred by: (1) not including intent to defraud as an element of conspiracy to commit bank fraud in the jury instruction; (2) responding to a written question from the jury by directing the jury to consider each count of the indictment separately; (3) denying Wright’s motion for new trial based on a Brady violation; (4) improperly calculating of the bank’s loss amount under USSG § 2B1.1(b)(1); and (5) improperly calculating of the restitution amount.

Because Wright did not properly object during his original trial in relation to his first, second, fourth, and fifth claims on appeal, the court reviewed them under the plain-error standard, which requires a plaintiff to establish an “error, that is plain, which affects substantial rights, and seriously effects the fairness, integrity, or public reputation of judicial proceedings.” The court stated that a plain error affects a defendant’s substantial rights if there is a reasonable probability that, if the error had not occurred, the result of the proceeding would have been different.

Concerning Wright’s first claim, that the court erred by not including the necessary element of intent to defraud to convict on a charge of conspiracy to commit bank fraud in the jury instruction, the court reviewed the jury instructions in light of the context of the entire trial to see if the instructions accurately stated the law and provided the jury with a correct understanding of the facts of the case. The court rejected this claim, saying that Wright could not show error because, while the court did not list intent to defraud in the instruction, the omission was cured because the instruction relating to committing bank fraud did incorporate “intent to defraud” by requiring an agreement to commit bank fraud.

During deliberations, the jury asked the judge if it they had to find Wright guilty on count 1 in order to convict him on any of the subsequent counts. Over objection of counsel, who agreed with the legal answer provided by the court but requested different phrasing, the judge responded, “No, you must consider each count separately.” On appeal, Wright contends that the answer should have been “Yes,” because, citing Pinkerton v. United States, the conviction would have been based on the acts of a co-conspirator and not his own acts (as his co-conspirator was testifying at his trial). The court stated that Wright had waived his ability to assert error under Pinkerton by failing to object on that basis at the district court level.  Instead, because Wright had generally objected to the instruction, the court reviews for plain error. However, because Wright argued under an abuse of discretion, and not plain error he waived his right to argue the claim.

In support for his motion for new trial, Wright argued that the government withheld a victim impact statement that the bank president had prepared for his coconspirator’s sentencing. Wright claimed that the information would have helped him to impeach his co-conspirator at his own trial. In their assessment of Wright’s motion, the court stated that Wright would have to show the prosecution suppressed material evidence that was favorable to Wright.  While the court determined the statement was not given to Wright prior to the trial, and that it was favorable to him, he failed in showing that the information included in the impact statement was material enough that it could have undermined confidence in the outcome of the case because Wright already attacked his co-conspirator’s credibility extensively at trial.

In calculating Wright’s sentence and amount of restitution he would be required to pay to the victims, the district court looked to the amount of Wright’s fraudulent draw requests, and determined he owed to be $1,094, 490. Wright was provided the sum in the presentencing report, which he accepted. Because the Bank recovered sums due to its sale, the sales price should be subtracted from the outstanding loan balance to calculate restitution to avoid a windfall to the victim. However, because the amount of restitution and sentence is a factual question, Wright was required to object at the district court level for it to rise to the level of a plain error reviewable on appeal. Wright accepted the amount in the pre-sentencing report, and the court held that Wright had accepted the calculation of restitution and his sentence as correct.

The Tenth Circuit Court of Appeals affirmed the district court’s rejection of Wright’s motion for new trial and rejected Wright’s other claims as to the amount and length of his sentence.

Tenth Circuit: Officers Executing Warrant Acted in Objectively Reasonable Reliance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Russian on Tuesday, February 21, 2017.

The Tenth Circuit Court of Appeals had to determine if the good faith exception to the exclusionary rule was properly applied in the case where police searched two cell phones belonging to the appellant after his arrest without first obtaining a valid search warrant. At trial, Mr. Russian moved to have evidence obtained from the phones suppressed for lack of particularity. The district court denied the motion, and sentenced Mr. Russian to 137 months’ incarceration. Mr. Russian appealed, claiming that the district court erred in denying his motion to suppress the phone evidence, and claiming that the 137-month sentence was above the maximum permitted by statute.

The case stems from an incident beginning in Missouri, where police received a 911 call concerning a man matching Mr. Russian’s description threatening two women with a machete and handgun. When police arrived, Russian fled, beginning a high-speed chase into Kansas. Upon Russian’s arrest, Deputy Wilson searched Russian, and found a red and black phone in his possession. Deputy Wilson then found a second phone in Russian’s vehicle, both of which he entered into evidence. Deputy Wilson later applied for a warrant to search Russian’s residence, as well as both the contents of both phones already in police possession, The state district court warrant authorized the search of cell phones that could be used to commit the crimes, and described the locations to be searched, but did not authorize the search of the phones already in police possession.

The Fourth Amendment provides that no citizen will be subjected to unreasonable search and seizure. However, the court added, that even these protections are subject to the harmless error rule, where a search may be upheld if the error is so unimportant and insignificant that they may be deemed harmless beyond a reasonable doubt, not requiring the automatic reversal of the conviction. The court stated that a search warrant must, in addition to probable cause, describe with particularity the place to be searched, and the persons or things to be seized. In this case, the court said that there is little doubt that the search warrant was invalid for lack of particularity, as it did not identify the phones or the data on those phones to be searched.

Although the warrant was invalid, the court still upheld the denial of Mr. Russian’s motion to suppress under the good faith exception. The good faith exception applies to an otherwise invalid search warrant where the officer’s reliance on the warrant was objectively reasonable under the circumstances, and asks if a reasonably well-trained officer would have known the search was illegal despite the warrant’s authorization. However, the court noted that the government is not entitled to the exception when the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officer cannot reasonably presume it to be valid.” In analyzing Deputy Wilson’s search, the court determined that because his affidavit specifically described the phones, the warrant referenced the affidavit, and the exclusion of the evidence would not serve the purpose of the exclusionary rule (to prevent police misconduct) the good faith exception applied.

As to Russian’s second claim, the court agreed that district court erred in relying on a guidelines range that improperly took into account a fifteen year old felony conviction that was too old to be included in the sentencing range. The court also agreed with Russian that the court erred in imposing a 76-month sentence, as it is above the 60-month maximum imposed by statute.

The Tenth Circuit affirmed Russian’s convictions, but remanded for resentencing for three of the counts based on the improperly calculated guidelines range.