October 24, 2014

Tenth Circuit: No Error in Admission of Other Bad Act Evidence to Prove Intent, Motive, and Opportunity

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nance on Tuesday, September 23, 2014.

Jory Nance used peer-to-peer file sharing software to send images of child pornography to an Oklahoma detective. The detective reported Nance to the FBI, who began surveillance on the house where Nance lived with his wife and two young children. When Nance noticed one of the agents, he began deleting files from his laptop and stopped downloading files. He also researched how to reformat his computer. Shortly thereafter, FBI agents seized his computer, which Nance admitted was solely his but falsely claimed had been inoperable for several months.

The FBI conducted a forensic analysis of Nance’s computer and was able to recover over 1,000 deleted images of child pornography. Additionally, the FBI was able to recover names of files with images that were not recoverable, and found that Nance had used his laptop during the period he claimed it was inoperable to access a nudism website. The United States charged Nance with multiple counts of receiving or attempting to receive child pornography. Nance claimed at trial he did not know the images were on his computer, but the jury rejected his defense and convicted him of eight counts of transporting child pornography (related to the files he shared with the detective) and 49 counts of receiving or attempting to receive child pornography. He was sentenced to 64 months in prison followed by five years’ supervised release. He appeals his convictions, arguing (1) the district court erred in admitting evidence of his other bad acts in violation of FRE 404(b)(2); and (2) the evidence was insufficient to prove he attempted to receive child pornography.

The Tenth Circuit first addressed the other bad act evidence. The district court allowed admission of the evidence to prove motive, intent, and opportunity. In making this determination, the district court concluded the probative value of the evidence outweighed the potential for unfair prejudice. The trial court provided a limiting instruction when it was requested. The Tenth Circuit found no error, because the limiting instruction was available and could have been used each time potentially prejudicial evidence was admitted had it been requested. Because defense counsel did not object to the form or content of the limiting instruction, and did not request it each time potentially prejudicial evidence was introduced, the Tenth Circuit found no error.

As to the second claim, Nance asserted the jury could not prove he attempted to receive child pornography because the charges were based on recovered file names without accompanying images. However, the jury did not need to find Nance actually received child pornography — all the jury needed was to find that Nance believed he would receive child pornography. The graphic nature of the file names was enough to prove Nance’s intent.

The Tenth Circuit affirmed all of Nance’s convictions.

Tenth Circuit: Forged Check is Not “Of” Bank Into Which it is Eventually Deposited

The Tenth Circuit Court of Appeals issued its opinion in United States v. Powell on Monday, September 22, 2014.

Crosby Powell attracted the attention of federal authorities in 2006 when he deposited stolen checks into his accounts at UMB Bank, Wells Fargo, and TCF Bank. An investigation revealed he had altered payee information or forged endorsements on some of the checks. He was subsequently charged with 11 counts of uttering or possessing forged checks and 17 counts of possessing stolen mail. Powell appealed only the 11 counts of uttering or possessing forged checks, arguing for the first time on appeal that the government’s position that the checks were “of” the bank into which they were deposited was a faulty reading of the statute.

The Tenth Circuit agreed with Powell that the checks were not “of” the depositing organization, but his claims were subject to plain error review since they were not raised in district court. Of the 11 counts, 8 were plainly erroneous, since the checks involved in those counts were not issued by federally insured banks operating in interstate commerce. The Tenth Circuit reversed the convictions regarding these 8 checks.

For two of the remaining three counts, the checks were issued by Wells Fargo, which is a federally insured bank operating in interstate commerce, so the Tenth Circuit found no error in Powell’s convictions and affirmed. The final count was based on two checks, one of which was issued by Wells Fargo and one of which was a U.S. Treasury check. Because one of the checks supporting the count was “of” a federally insured bank, the Tenth Circuit affirmed Powell’s conviction on this count.

The case was affirmed in part, reversed in part, and remanded for further proceedings consistent with the Tenth Circuit opinion.

Colorado Court of Appeals: Involuntary Medication Administration Necessary to Render Defendant Competent to Stand Trial

The Colorado Court of Appeals issued its opinion in People in Interest of Hardesty on Thursday, October 9, 2014.

Involuntary Administration of Medication to Render Defendant Competent to Stand Trial.

Hardesty was sent to the Colorado Mental Health Institute in Pueblo (CMHIP) after he was found incompetent to proceed in two criminal cases filed against him. While at CMHIP, Hardesty refused to take antipsychotic medications. The People petitioned to have the medications involuntarily administered to render him competent to proceed in the criminal cases. The district court granted the People’s petition following a hearing in which it made a number of findings by clear and convincing evidence.

On appeal, Hardesty argued that the People failed to establish the legal requirements for administration of medications under Sell v. United States, 539 U.S. 166 (2003).The Court of Appeals disagreed.

Under Sell, a court must find the defendant: (1) is facing “serious criminal charges”; (2) the involuntary medication will significantly further the state’s interest in prosecution; (3) administration of the drugs is substantially likely to render the defendant competent to stand trial; (4) administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense; (5) involuntary medication is necessary to further the identified governmental interests; (6) less intrusive means for administering the drugs must be considered; (7) any alternative, less intrusive treatments are unlikely to achieve substantially the same results; and (8) administration of the drugs is medically appropriate.

Hardesty challenged the first, second, and fifth factors listed above. On the first issue, Hardesty was charged with “[s]hoplifting that resulted in an assault and as a result then [became] a [r]obbery.” The Court held that robbery, as charged here, was a “serious” crime. The Court further concluded that, given the seriousness of the robbery charge, the government had a significant interest in restoring Hardesty to competency so that he could be tried.

Hardesty also argued that no evidence was presented to prove that ordering involuntary medication was necessary to further the state’s interest in prosecution. The lower court found by clear and convincing evidence that Hardesty was unlikely to be restored to competency without the medications. This finding was not clearly erroneous. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Identification of Drugs On Website Insufficient as Proof Under CRE 803(17)

The Colorado Court of Appeals issued its opinion in People v. Hard on Thursday, October 9, 2014.

Hearsay Testimony—CRE 803(17)—Illegal Sentence.

State Trooper Blake Hancey pulled over defendant’s car after seeing that defendant was speeding and not wearing a seat belt. Incident to the arrest, Trooper Hancey searched defendant and found ten pills in her pants pockets. A jury found defendant guilty of possession of a schedule II controlled substance (oxycodone), possession of a schedule III controlled substance (alprazolam), failure to present proof of insurance, and speeding.

On appeal, defendant contended that the district court erred by admitting hearsay testimony about information Trooper Hancey obtained from Drugs.com. Before taking defendant to the police station, Hancey accessed the website Drugs.com to identify the pills found on defendant. Information from Drugs.com does not meet the requisite criteria of necessity and reliability to be admissible under CRE 803(17). Another available and more reliable method for identifying the pills would have been to submit them to the Colorado Bureau of Investigation for chemical testing, which was not done in this case. The district court therefore erred in admitting the hearsay evidence obtained from that website.

Because Drugs.com was insufficient to prove identity of some of the pills as oxycodone beyond a reasonable doubt and there was no other evidence to identify these pills, the conviction for possession of a schedule II controlled substance was vacated and the People cannot retry defendant on that charge. However, because defendant told Hancey that she had taken Xanax (alprazolam) earlier that day and that she had prescriptions for the pills he had found in her pockets, a rational fact-finder could have found beyond a reasonable doubt that defendant possessed alprazolam. Therefore, defendant was subject to retrial on the charge for possession of that substance.

On cross-appeal, the People contended that the district court imposed an illegal sentence by suspending half of the mandatory minimum fine for defendant’s conviction for failure to present proof of insurance. The sentencing statute permits a court to suspend half of the $500 mandatory minimum fine for failure to present proof of insurance if the defendant shows that he or she has obtained insurance. Here, at the sentencing hearing, defendant told the court that her car had been auctioned off and that she was no longer driving. Nothing in the plain language of the statute provides an exception where a defendant represents that she has relinquished ownership of her car or is not currently driving. The sentence was therefore illegal.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trial Court Impermissibly Usurped Jury’s Role in Finding Facts

The Colorado Court of Appeals issued its opinion in People v. Jaso on Thursday, October 9, 2014.

Civil Protection Order—Domestic Violence—Sixth Amendment—Habitual Offender—Jury.

A.K. received a civil protection order against defendant after he attacked her while she was holding her infant son. The orderprevented defendant from contacting A.K. directly or through a third person except by use of text message. After defendant sent A.K. a letter addressed to their minor son through a fellow inmate at the county jail where he was in custody, he was charged with violation of the protection order, a class 1 misdemeanor, and a habitual domestic violence offender sentence enhancer (HDVO statute), a class 5 felony.

The jury convicted defendant of the charged misdemeanor. Thereafter, the court held a trial on the habitual charge. First, the court determined that the violation of the protection order was an act of domestic violence. Second, the court concluded that the prosecution had proved that defendant had previously been convicted three times of domestic-violence-related crimes. Pursuant to the HDVO statute, the trial court convicted defendant of a class 5 felony and sentenced him to thirty months in the custody of the Department of Corrections.

On appeal, defendant argued that the trial court violated his Sixth Amendment right to a jury trial. “The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.” Here, because the trial court and not the jury found the facts necessary to sentence defendant as a habitual offender, it violated his Sixth Amendment rights. Accordingly, the judgment of conviction was reversed and the case was remanded to the trial court for entry of judgment of conviction and resentencing on a class 1 extraordinary risk misdemeanor.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prejudicial Effect of Other Bad Act Evidence Outweighed Possible Relevance

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, October 9, 2014.

Stalking—Surveillance—Other Acts Evidence—Expert.

Defendant asked a woman he knew to “house sit” his apartment for six months while he worked in South Korea. Before he left, and without the house sitter’s knowledge, defendant set up motion-sensitive video cameras in the apartment’s bedroom and living room. The house sitter discovered the cameras about twelve days after she moved in. Some of the recordings showed the house sitter having sex with her boyfriend. A jury convicted defendant of two counts each of stalking, invasion of privacy, and unlawful sexual contact.

On appeal, defendant contended that the trial court abused its discretion when it “admitted other act evidence of an unrelated sexual encounter involving another individual.” The prosecution’s offer of proof alleged that a woman who had rented a room to defendant awoke one night to find him crouched near her bed, wearing only his underwear, and masturbating while watching her. The woman’s trial testimony was significantly different from the prosecution’s offer of proof. At trial, she stated that she awoke because defendant had touched her “underneath the covers in [her] crotch.”The woman’s description at trial was qualitatively different, more severe, and more inflammatory than the evidence concerning the charged offenses. Therefore, her testimony was inadmissible pursuant to CRE 403 and the trial court erred by admitting such evidence. Because there was a reasonable probability that the error contributed to defendant’s convictions by substantially influencing the verdict or impairing the trial’s fairness, the convictions were reversed and the case was remanded for a new trial.

Defendant also contended that the trial court abused its discretion when it excluded the psychologist’s testimony concerning the charge of unlawful sexual contact. Defendant sought to admit testimony by a psychologist who performed a sex-offense-specific evaluation of defendant. The psychologist’s report found that (1) defendant had a sexual interest consistent with the interests of the general adult male population of the United States, and (2) defendant’s interest in voyeurism was not significant enough to classify him as abnormal. Because the evidence was relevant to the charge of unlawful sexual contact, the court abused its discretion in excluding such testimony. The trial court should allow defendant to present such evidence on retrial.

Defendant further argued that the evidence was insufficient to support his convictions for stalking. Defendant’s use of the cameras constituted surveillance, which supported the stalking charge.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Merely Identifying Group to Which Excluded Juror Belonged Not Enough for Batson Challenge

The Colorado Court of Appeals issued its opinion in People v. Morales on Thursday, October 9, 2014.

Sexual Assault—Jury Selection—BatsonChallenge—Penetration—Evidence—Double Jeopardy.

The evidence presented at trial showed that, on the night of the charged assault, the victim, 16-year-old B.R., attended a party at the apartment of an acquaintance. B.R. became intoxicated and eventually fell asleep in a bedroom. B.R. woke up with Morales, A.R.’s step-father, kissing her, touching her, and placing his penis on her. Someone turned on the lights in the room when B.R. began screaming at Morales and alleging that he had tried to rape her. A jury convicted him of multiple charges of sexual assault.

On appeal, Morales first sought a limited remand for the trial court to make a better record on the third step of his Batson challenge [Batson v. Kentucky, 476 U.S. 79 (1986)]. Merely identifying cognizable groups to which the excluded juror might have belonged is insufficient, without more, to establish a prima facie showing of purposeful discrimination. Here, a remand was unnecessary, because the court properly determined that Morales failed to make a prima facieshowing of discrimination at step 1 of the Batson analysis.

Morales also contended that the evidence was not sufficient to prove that he committed the crime of sexual assault because there was no sexual penetration. Sexual assault in violation of CRS §18-3-402 requires the knowing infliction of either sexual intrusion or sexual penetration on a victim. Here, the prosecution presented evidence that Morales performed cunnilingus on B.R. The evidence was therefore sufficient to support Morales’s convictions for sexual assault, and the jury was properly instructed as to these definitions.

Morales further argued that one of his convictions must be vacated to comport with the prohibition against double jeopardy. Specifically, he claims that he should not stand convicted and sentenced for both the felony sexual assault and attempted felony sexual assault because the actions underlying both convictions constitute a single crime. All of the sexual conduct Morales inflicted on B.R. occurred within five minutes or less, with no break in between the different sexual acts. There was no evidence of intervening events. Because Morales’s separate convictions for felony sexual assault and attempted felony sexual assault violated double jeopardy principles, the Court of Appeals remanded the case to merge the charges into a single conviction.

Summary and full case available here, courtesy of The Colorado Lawyer.

CJD 11-01 Amended Regarding e-Filing in Criminal Cases

The Colorado State Judicial Branch released Chief Justice Directive 11-01, “Directive Concerning Statewide Electronic Filing Standards,” on Monday, October 6, 2014. The CJD was signed and effective September 30, 2014, in anticipation of the criminal e-filing pilot project scheduled to begin October 6, 2014, in Pueblo.

The amendments to the Chief Justice Directive are meant to address specific issues that will arise in criminal e-filing. In addition, Appendix B was added to specify reasons why cases would be rejected for e-filing.

For the full text of CJD 11-01, click here. For all of the Colorado Supreme Court Chief Justice Directives, click here.

Tenth Circuit: Sex Offender Registration Requirements are Necessary and Proper to Regulate Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brune on Friday, September 19, 2014.

Gustave Wilhelm Brune pleaded guilty in 2001 to possession of child pornography. He served 27-months in federal prison, after which he was placed on supervised release. In 2004, he violated a condition of his release and was incarcerated for an additional 21 months. In 2006, he completed his sentence and was released without supervision but was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA) and the national Sex Offender Registration and Notification Act (SORNA). He was required to keep his registration current under both Acts.

Between 2006 and 2011, Brune repeatedly failed to comply with the registration requirements. After an investigation, federal officials charged Brune with failure to register as a sex offender and obtained an arrest warrant. A search of his home incident to the arrest revealed child pornography images on Brune’s computer and that he had accessed a webpage containing child pornography. He was indicted for failing to register under SORNA and accessing with intent to view child pornography under 18 U.S.C. § 2252A(a)(5)(B). He lodged unsuccessful constitutional objections to the charges and eventually pleaded guilty, reserving the right to appeal. On appeal, he argued (1) the Necessary and Proper clause cannot sustain Congress’s decision to enact SORNA; and (2) the conduct prohibited under 18 U.S.C. § 2252A(a)(5)(A) is unconstitutionally overbroad.

Addressing the first argument, the Tenth Circuit analyzed the Supreme Court’s decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Supreme Court determined that sex offender registration requirements did not violate the Necessary and Proper clause because Congress has the authority to impose punishment for sex offenders and the sex offender registration is necessary and proper to carry out Congress’s power. Applying the Court’s rationale to Brune, the Tenth Circuit found that SORNA survives Brune’s challenge. Brune’s original statute of conviction “plainly withstands constitutional scrutiny as an exercise of congressional authority under the Commerce Clause to regulate the interstate trafficking of child pornography. . . . And because the constitutionality of the underlying statute cannot be reasonably questioned, SORNA’s registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.”

As to the second argument, Brune asserted that 18 U.S.C. § 2252A(a)(5)(A) is overbroad because it contains the phrase “or any other material that contains an image of child pornography.” Brune argues that anyone who accesses the internet could be subject to prosecution under § 2252A(a)(5)(A) because there is child pornography on the internet. The Tenth Circuit rejected this argument. Read contextually, the meaning of the statute is easy to ascertain. And, even if there were some ambiguity in the meaning of the statute, the court’s preference is always to support the constitutionality of a statute.

The Tenth Circuit affirmed the district court’s denials of Brune’s motions to dismiss.

Tenth Circuit: Threatening Intent Required for Conviction Under Interstate Threat Statute

The Tenth Circuit Court of Appeals issued its opinion in United States v. Heineman on Monday, September 15, 2014.

Defendant Aaron Heineman, a white supremacist, sent three emails to a professor at the University of Utah in 2010 and 2011. The third email was a poem that made the professor fear for his safety and that of his family. The professor contacted law enforcement, who traced the email to Heineman. When officers contacted Heineman in writing, he immediately responded, “Is this about the email?” He was charged with one count of sending an interstate threat in the U.S. District Court for the District of Utah. Prior to trial, he requested an instruction that he must have intended his communication to be perceived as a threat in order to be convicted, but his request was denied. He then moved to dismiss the charge, arguing the statute was facially unconstitutional if it did not require proof that he intended the communication to place the hearer in fear of bodily harm or death. The court denied this motion. He reasserted his objections at trial, and the court again rejected them. The court concluded that Defendant had knowingly transmitted a communication that would cause a reasonable person to fear bodily harm or death. Defendant appealed.

The Tenth Circuit reversed the conviction. After a careful analysis of the U.S. Supreme Court’s opinion in Virginia v. Black, 538 U.S. 343 (2003), the Tenth Circuit concluded as an issue of first impression that the defendant must intend the communication to be perceived as a threat, regardless of whether he actually carries out the threat. The Tenth Circuit reversed Defendant’s conviction and remanded for determination of intent.

Tenth Circuit: Sentence Outside Guidelines Range Not Subject to Reduction

The Tenth Circuit Court of Appeals issued its opinion in United States v. White on Tuesday, September 2, 2014.

Joseph White was indicted on 16 gun- and drug-related counts. In exchange for White pleading guilty to possession of a firearm in furtherance of a drug trafficking crime, the prosecution agreed to drop the remaining charges, including the drug-trafficking offense underlying his guilty plea. The Presentence Investigation Report recommended the statutory minimum 60 month sentence, but the district court advised the parties via letter that it was considering an upward departure for White’s dismissed charges, including some crack cocaine offenses. Following a hearing, the sentencing court varied upward from the 60 month sentence by 87 months, for a total sentence of 147 months. The Tenth Circuit upheld his sentence on direct appeal.

In 2010, Congress enacted the Fair Sentencing Act, which lowered the Guidelines ranges for crack cocaine offenses. Had the lower sentencing ranges for crack offenses been in place when White was originally sentenced, and had the judge employed the same reasoning he employed in his upward departure, White’s conduct would have merited an upward departure of 37-46 months, rather than 70-87 months. White petitioned the district court to reduce his sentence accordingly, but the district court responded that the FSA’s amendments did not affect his applicable Guidelines range of 60 months. White appealed.

The Tenth Circuit, first admonishing that sentence modifications are to be the exception and not the rule, discussed the authority of a district court to modify a sentence that was imposed outside the Guidelines range. Because only the 60-month sentence was imposed based on the Guidelines range, it was outside the district court’s authority to amend the 87 month upward departure based on the new sentencing rules for crack offenses. The Tenth Circuit upheld the sentence.

Colorado Court of Appeals: Warrantless Search of Cell Phone Violated Fourth Amendment

The Colorado Court of Appeals issued its opinion in People v. Omwanda on Thursday, September 25, 2014.

Evidence Suppression of Information on Cell Phone—Theory of Defense Instruction.

Before trial, defendant sought to suppress evidence that police had recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver’s permission, the officer searched inside the car, where he found electronic scales and a pill bottle containing cocaine. Two passengers said the pill bottle belonged to defendant.

The officer arrested and searched defendant. The search revealed another pill bottle and a cell phone. The second pill bottle contained a white residue. Defendant asked the officer to give the cell phone to another passenger, but the officer told him he would keep it as evidence. The officer read three text messages on the phone. All three indicated cocaine use and purchase.

The officer later applied for, and received, a warrant to search the phone. The warrant application quoted the text messages. The search of the phone pursuant to the warrant revealed additional communications and information indicative of drug dealing.

The trial court denied the motion to suppress because the search was incident to the arrest. The jury acquitted defendant of possession with intent to distribute but convicted him of possession of a controlled substance.

The Court of Appeals agreed with defendant that the initial search of the phone violated the Fourth Amendment as enunciated by the U.S. Supreme Court in Riley v. CaliforniaRiley v. California, ___ U.S. ___, 134 S.Ct. 2473 (2014). In Riley, the Court held “that a warrant is generally required before . . . a search [of information on a cell phone], even when a cell phone is seized incident to arrest.”

The People argued that even if the initial search was unlawful, the police independently discovered the information on the phone pursuant to the search warrant. A court may admit unconstitutionally obtained evidence “if the prosecution can establish that it was also discovered by means independent of the illegality.” The Court reviewed the officer’s warrant application and found probable cause to support the issuance of the warrant. The issue turns on whether the initial search of the three text messages affected the officer’s decision to seek the warrant. This required further factual findings. Accordingly, the case was remanded for further proceedings on this issue.

Summary and full case available here, courtesy of The Colorado Lawyer.