January 27, 2015

Tenth Circuit: Congress Did Not Grant Authority to Expunge Records in Federal Youth Corrections Act

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

David Tokoph was sentenced in 1974 under the then-effective Federal Youth Corrections Act, which provided that for offenders sentenced to probation who met certain criteria, the court could set aside the conviction and provide the offender a certificate to that effect. In 1982, Tokoph was discharged, the sentence was set aside, and the court issued him a certificate to that effect. In 2012, Tokoph petitioned the U.S. District Court for the District of New Mexico to seal and expunge his records. The district court found it lacked authority to do so and denied the motion. Tokoph appealed.

The Tenth Circuit evaluated the case law on which Tokoph relied and found that his proposition was only supported by dicta, not holdings in the cases. To the contrary, the Tenth Circuit found the district court correctly followed binding circuit precedent in refusing to expunge the conviction. Tokoph also argued that Supreme Court precedent indicated authority to seal records, but the Tenth Circuit found that the indications were weak, and the binding Tenth Circuit precedent on point controlled. The Tenth Circuit also noted there is no applicable inherent equitable authority to grant expunction of a valid conviction.

The district court’s denial of Tokoph’s motion to expunge was affirmed. The Tenth Circuit reversed the order sealing the record.

Colorado Supreme Court: Actual Conflict Requires Showing of Both Conflict of Interest and Adverse Effect

The Colorado Supreme Court issued its opinion in West v. People on Tuesday, January 20, 2015.

Conflicts of Interest—Post-Conviction and Extraordinary Relief—Ineffective Assistance of Counsel.

In these appeals, defendants alleged that their trial counsel labored under conflicts of interest because counsel concurrently or successively represented trial witnesses against them. The court of appeals remanded both cases to the trial courts to determine whether, under Cuyler v. Sullivan, 446 U.S. 335 (1980), defendants’ attorneys labored under an “actual conflict.” Defendants separately petitioned for review of the court of appeals’ judgments, asking the court to clarify whether the Sullivan standard requires a defendant to demonstrate, in addition to a conflict of interest, that an “adverse effect” arose from the conflict.

In People v. Castro, 657 P.2d 932 (Colo. 1983), the Supreme Court held that an adverse effect was inherent in a “real and substantial” conflict of interest and thus a separate showing was unnecessary. In this consolidated opinion, the Court overruled Castro because the U.S. Supreme Court recently held that an actual conflict, under the Sullivan standard, requires a defendant to show both a conflict of interest and an adverse effect on his or her attorney’s performance.

The Court held that to show an adverse effect, a defendant must (1) identify a plausible alternative defense strategy or tactic that trial counsel could have pursued; (2) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision; and (3) establish that counsel’s failure to pursue the strategy or tactic was linked to the actual conflict. The Court therefore affirmed the court of appeals’ judgments in part and instructed the trial courts to consider whether, under this framework, defendants received ineffective assistance of counsel by virtue of their attorneys’ alleged conflicts and are therefore entitled to new trials.

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

Tenth Circuit: Veracity of Affiant, Not Informant, At Issue to Establish Probable Cause for Warrant

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

A Tulsa, Oklahoma police officer obtained a warrant to search an apartment after a reliable confidential informant provided information about a black male selling cocaine. Deanta Marquis Long answered when the police arrived to execute the warrant, holding a jar containing a white substance. He attempted to shut the door, but police forced their way in. They found him on the kitchen floor, with broken glass and white powder strewn about. There was a gun on the floor and another gun on the counter, and three other men were there also. Police found three baggies of white powder, a digital scale with white powder on it, baking soda, and a CD with the word “Cokeland” showing defendant pouring something from a liquor bottle into a measuring cup with scantily clad woman in the background. The apartment did not look lived in, and police subsequently obtained a second warrant to search defendant’s house.

Defendant was convicted by a jury of being a felon in possession of firearms and ammunition, attempting to manufacture cocaine base, possessing cocaine with the intent to manufacture cocaine base, and possession of firearms in furtherance of drug-trafficking crimes. He appealed, arguing (1) the affidavit failed to establish probable cause; (2) he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), challenging the affiant’s veracity; (3) the district court erred in denying his motion to compel discovery of the informant; and (4) the CD should not have been admitted because it was unfairly prejudicial. The Tenth Circuit examined each contention in turn.

Defendant complained that the affidavit did not sufficiently identify him, since it only described a “black male.” But because the warrant was issued to search a place, rather than to connect a person to a place, there was no need to specify the people who might be found at the place. Defendant next contended that the informant’s assertions were not corroborated by police investigation. In this case, however, the informant was one who had provided reliable information to the police multiple times in the past and who had been providing information for over 15 years. Courts have consistently provided that probable cause can be established solely on information from a reliable informant.

The Tenth Circuit next addressed defendant’s request for a Franks hearing. The defendant attacked the veracity and existence of the informant, but under Franks, only the veracity of the affiant was at issue. Because this informant had provided reliable information in the past, it was reasonable for the affiant to believe that the informant was again providing reliable information. Defendant asserted several reasons why the informant’s information was unreliable, seeking discovery of the informant. The Tenth Circuit noted that the trial court had examined the informant in camera and found that he existed, had knowledge of defendant and the drug activity, and provided the information to the officers. Defendant could not establish any special reason why disclosure of the informant’s identity was necessary under these circumstances. The informant could not have offered any information regarding defendant’s guilt in the case, and disclosure was unwarranted.

Turning to the admission of the CD, the Tenth Circuit found no error. The CD cover depicted defendant pouring liquid into a measuring cup, which a police officer testified is related to the manufacture of cocaine base, and the CD was found next to a digital scale, three baggies of white powder, and baking soda. Defendant asserted admission would allow the jury to reach an unfair conclusion regarding defendant’s guilt, but the Tenth Circuit disagreed, finding that the CD had his picture on it and was found next to the cocaine, inviting an inference that the cocaine was his. The chain of inference was not that defendant was acting in conformity with his bad character, but rather that the cocaine belonged to him. The CD’s probative value was not substantially outweighed by the danger of unfair prejudice.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: District Court Free to Resentence Remaining Counts De Novo When One Count Set Aside or Vacated

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

Ronald Catrell was indicted in Kansas on several fraud-related counts with an understanding that he would plead guilty. However, he fled after posting bond. When he was returned to Kansas the following year, he entered a different, binding plea agreement, agreeing to a sentence of 120 months. Before sentencing, however, the district court allowed Catrell to withdraw his guilty plea. The government then procured an indictment with over 12 new criminal counts. Catrell and the government entered into a new binding plea agreement, where Catrell would plead guilty to the same four crimes as before and receive 132 months in prison. To reach the 132 months, the parties agreed to a 24-month sentence for aggravated identity theft and a combined 108-month sentence for the other three counts to run consecutively. Defendant subsequently pled guilty and affirmed approximately 12 times that he was doing so of his own free will. The court accepted the agreement and sentenced Defendant to 132 months, but crafted the sentence differently — 54 months for aggravated identity theft and 78 months for the other three charges. Defendant appealed his aggravated identity theft charge and asserted prosecutorial vindictiveness for withdrawing his initially-agreed-upon plea for 120 months.

The Tenth Circuit first addressed Defendant’s assertion of prosecutorial vindictiveness, and found none. The Tenth Circuit noted that binding precedent foreclosed Defendant’s arguments on review, because as long as the accused is free to take or leave the government’s plea offer, there is no element of punishment or revenge.

Turning to the sentencing issue, the Tenth Circuit found that the district court had sentenced Defendant illegally by imposing a 54-month sentence for aggravated identity theft. The pertinent statute, 18 U.S.C. § 1028A, mandates a two-year sentence for each incident of aggravated identity theft. The Tenth Circuit reversed and remanded for correction of the illegal sentence. However, it rejected Defendant’s contention that the district court could not amend the rest of Defendant’s sentence. The Tenth Circuit’s “sentencing package doctrine” counsels that when one count of a sentence is set aside or vacated, a district court is free to reconsider sentencing de novo.

The Tenth Circuit remanded for resentencing with specific instructions for the district court to feel free to amend the entire sentence to retain the original 132-month agreement.

Colorado Court of Appeals: Trial Court Erred By Refusing Self-Defense Instruction for Reckless Manslaughter Charge

The Colorado Court of Appeals issued its opinion in People v. McClelland on Thursday, January 15, 2015.

Reckless Manslaughter—Self-Defense—Jury Instruction—Burden of Proof—In Life Photographs—Evidence.

Defendant’s father and the victim were involved in a physical altercation. Defendant pulled a gun out of his father’s backpack and shot the victim seven times, killing the victim. The jury found defendant guilty of reckless manslaughter.

On appeal, defendant contended that the trial court erred by not giving the jury a “self-defense law instruction” on the charge of reckless manslaughter.Instruction Number 19, which addressed the applicability of self-defense to the reckless manslaughter count, directed the jurors not to apply Instruction Number 18, which explained the legal meaning of self-defense. Therefore, the jurors received no guidance as to the meaning of self-defense with respect to the offense of reckless manslaughter. This cast serious doubt on the fairness of defendant’s conviction. Because the error was seriously prejudicial and obvious, it constituted plain error. Accordingly, defendant’s conviction was reversed and the case was remanded for retrial.

Defendant also contended that the trial court erred by placing the burden on him to prove self-defense to the charges of reckless manslaughter and criminally negligent homicide.Here, the trial court did not err. Defendant had the burden of proving self-defense to the charges of reckless manslaughter and criminally negligent homicide.

Defendant further argued that the trial court abused its discretion when it admitted three “in life” photographs depicting the victim participating in family events. In life photographs of homicide victims are not per se inadmissible; rather, their admissibility must be determined on a case-by-case basis. Here, the photographs were evidence of an undisputed fact—that the victim was alive prior to the shooting. Because the photographs had almost no probative value, and because the prosecutor sought to elicit the jury’s sympathy based on those photographs, the admission of the photographs unfairly prejudiced defendant and the trial court erred by admitting them. On retrial, the court should reconsider whether to allow in life photographs in light of the above discussion, and if so, how many, and whether to limit the prosecution’s comments about them so as to avoid the risk of unfair prejudice.

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

Tenth Circuit: Intrinsic Evidence Not Unfairly Prejudicial Where Necessary to Explain Circumstances of Arrest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hood on Wednesday, December 17, 2014.

Oklahoma City police were investigating a string of burglaries and knocked at the door of an apartment belonging to the owner of a phone left at a burglary site. Although no one answered, a few minutes later residents of the apartment complex alerted police that someone was running from that apartment. The police caught the runner, Michael Hood, who was wearing a bulky coat despite the warm day and was fumbling in his pockets for something. Concerned that he might have a weapon, the police handcuffed and frisked Hood. He was subsequently indicted on two counts of being a felon in possession, related to the incident at the apartment in March 2012 and a separate incident in June 2012. After a jury trial, he was sentenced to 262 months’ imprisonment.

Hood appealed, arguing first that the police seized the firearm in March 2012 in violation of his Fourth Amendment rights. Hood argued that the officers’ use of weapons and handcuffs was not justified, also asserting that the officers waived the opportunity to argue justification for using force. Hood next argued that, if the court should find excessive force from the March 2012 incident, the conviction from June 2012 should also be vacated since the prosecutor relied heavily on evidence from the March incident to convict on the June incident.

The Tenth Circuit was not persuaded by Hood’s waiver argument. The government responded to Hood’s motion to suppress that the officers’ seizure and detention of Hood was a reasonable Terry stop supported by suspicion of criminal activity, and did not waive their argument. As to whether the use of force was justified, the Tenth Circuit affirmed the district court’s conclusion that it was. Hood argues that it was not reasonable because the officers lacked prior belief that he was dangerous. Although the officers were investigating a different individual, Hood ran from the apartment of the person they were investigating and his behavior was suspicious. The Tenth Circuit found the officers were fully justified in drawing their weapons and ordering him to the ground under these circumstances. Because the Tenth Circuit found no error in the search and seizure, it declined to address the arguments relating to the June 2012 possession conviction.

Hood also argued that evidence concerning the burglaries was unduly prejudicial under FRE 404(b)(1) and should have been suppressed. However, this evidence was not admitted to show that Hood acted in accordance with his character; the evidence was admitted as intrinsic evidence. The evidence concerning the burglaries was necessary to explain why the police were at the apartments and why they had heightened suspicion as to Hood. The Tenth Circuit also evaluated for unfair prejudice under Rule 403 and found none. Hood was never named as a suspect in the burglaries, so there was no unfair prejudice in admitting evidence regarding the circumstances of Hood’s arrest.

Finally, Hood argued that a prior conviction for pointing a gun at another person should not count as a violent felony sentence enhancer under ACCA. The Tenth Circuit disagreed. Hood pleaded guilty to pointing a firearm at another person with the intent to injure the other person either physically or through emotional intimidation. The Tenth Circuit noted that using a firearm to threaten another is precisely the sort of violent force proscribed by ACCA.

The Tenth Circuit affirmed Hood’s convictions and sentence.

Colorado Supreme Court: When Court Grants Motion for New Trial, Defendant Restored to Original Bond Status

The Colorado Supreme Court issued its opinion in People v. Blagg on Monday, January 12, 2015.

Bond Hearing—Motion for New Trial—Victims’ Rights Act.

In this original proceeding under CAR 21, the Supreme Court issued an order to show cause, which it now makes absolute. The Court held that when a trial court grants a motion for a new trial, the defendant is restored to the bond status that existed upon the filing of charges. In a capital case, this requires that the court hold the defendant without bond until he or she requests admission to bail. Once requested, the court must set a hearing, at which the district attorney may seek to have bail denied because the proof is evident or the presumption great. Even if the district attorney does not contend the proof is evident or the presumption great, the court must still hold a hearing to set bail. In either circumstance, because such a hearing is a “critical stage” as defined by the Victims’ Rights Act enabling legislation, CRS § 24-4.1-302(2)(c)(I)(E), the alleged victim (or the alleged victim’s family if the alleged victim is deceased) has the right to be present and heard at the hearing.

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

Tenth Circuit: § 1983 Challenges Unlikely to Succeed on Merits; Stay of Execution Denied

The Tenth Circuit Court of Appeals issued its opinion in Warner v. Gross on Monday, January 12, 2015.

In early 2014, Oklahoma changed its execution procedure for lethal injections due to the state’s inability to obtain two of the drugs previously used. In April 2014, Clayton Lockett was the first Oklahoma state prisoner to be executed using the new procedures, and his execution did not go smoothly. The IV used to deliver the lethal drug cocktail infiltrated, or leaked into his tissue instead of delivering the drugs to his veins. He experienced unusual effects from the lethal injection but eventually died anyway. After Lockett’s execution, the state developed new protocols for lethal injections, including establishing two viable IV sites and using various combinations of drugs, including midazolam, a sedative.

In November 2014, four inmates with scheduled execution dates as soon as January 15, 2015, among a group of twenty-one Oklahoma death row inmates, filed a § 1983 lawsuit challenging the constitutionality of Oklahoma’s new lethal injection procedure. Their complaint alleged eight counts, two of which are relevant to their appeal. Count 2 challenges the use of midazolam as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. Count 7 also raises an Eighth Amendment claim, asserting that the state is effectively experimenting on unwilling human subjects by using the untested procedure. After a three-day evidentiary hearing, the district court denied plaintiffs’ motion for preliminary injunction, concluding the inmates failed to show a likelihood of success on the merits. The plaintiffs appealed as to Count 2 and Count 7, and filed an emergency motion for stay of execution.

The Tenth Circuit conducted an abuse of discretion review and found none. The Tenth Circuit examined the long history of challenges to capital punishment, noting (1) the Supreme Court has never held that capital punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, (2) the Supreme Court has never invalidated a state’s chosen procedure for carrying out the sentence, (3) there must be some means of carrying out the death sentence, and the Constitution does not demand avoidance of all pain, and (4) a stay of execution may not be granted unless the prisoner demonstrates a substantial risk of severe pain from the state’s chosen lethal injection procedure.

The plaintiffs contested the district court’s finding that the testimony of the defendants’ expert witness, Dr. Roswell Lee Evans, the Dean of the School of Pharmacy at Auburn University, was persuasive. The Tenth Circuit examined Dr. Evans’s credentials and found him to be well-qualified to render an expert opinion on the effects of midazolam. The plaintiffs also argued that the district court misapplied Supreme Court precedent in Baze v. Rees, 533 U.S. 35 (2008). The Tenth Circuit disagreed, instead concluding that the plaintiffs failed to show that midazolam created a risk of extreme pain.

The Tenth Circuit affirmed the district court’s denial of the motion for preliminary injunction. In a footnote, the Tenth Circuit added that, in “an abundance of caution,” the opinion was circulated to all the judges prior to publication, and no judge requested en banc review.

Tenth Circuit: Four Year Age Difference Mandate for SORNA Registration Equals 48 Months

The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Tuesday, December 9, 2014.

Jay Black pleaded guilty for one count of sexual abuse of a minor for a consensual act between him, an 18-year-old, and a 14-year-old victim. A comparison of their birthdays revealed that Black was 55 months older than the victim. Black contests that he is not required to register as a sex offender because the Sex Offender Registration and Notification Act (SORNA) provides that a person does not qualify as a sex offender if the victim is at least 13 years of age and the offender was not more than four years older than the victim. Black contended that, because he was 18 and the victim was 14, he need not register. The district court disagreed, concluding that § 16911(5)(C) requires a comparison of the offender’s and victim’s birth dates. Black appealed.

The Tenth Circuit affirmed, adopting the reasoning of the Third Circuit in a similar case, United States v. Brown, 740 F.3d 145 (3d Cir. 2014), which found that considering “years” to mean whole years only would lead to strange results in application of SORNA. The Tenth Circuit advanced an additional reason, in that Black’s interpretation could reach offenders who were barely more than three years older than their victim, and would exclude offenders who were nearly five years older. The Tenth Circuit found no grievous ambiguity necessary to implicate the rule of lenity, and affirmed.

 

Colorado Court of Appeals: No Statutory Requirement for Law Enforcement to Inquire Into Immigration Status of Detainee

The Colorado Court of Appeals issued its opinion in People v. Cruz-Velasquez on Wednesday, December 31, 2014.

Exoneration From Bond Liability.

Vargas, a bonding agent, posted a $10,000 appearance bond on behalf of defendant. When defendant failed to appear at a hearing, Vargas received notice of bail forfeiture. Vargas did not request a show-cause hearing, and the court ordered the bond forfeited.

Vargas filed a “Motion Seeking Exoneration of Bond Liability” and a “Motion Seeking Reconsideration of Bond Exoneration Liability Denial, or a Hearing into the Argument.” The court summarily denied both. The motion was re-filed through counsel, and the court denied it in a written order.

The Court of Appeals reviewed the district court’s denial of bond exoneration for abuse of discretion. CRS § 16-4-117(5)(b)(III) provides that, upon failure to request a show cause hearing and thirty-five days after the entry of forfeiture, the court must enter judgment against the surety. The judgment may be vacated “if it appears that justice so requires.”

Here, the Court found no abuse of discretion. Vargas made no attempt to explain his failure to request a show-cause hearing. Surety’s arguments on appeal regarding the failure of jail personnel to determine defendant’s illegal immigration status were not supported by the record. Further, his argument that there is a requirement for jail personnel to make such an inquiry was misplaced. The order was affirmed.

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

Colorado Court of Appeals: District Court Authorized to Waive Some of Drug Offender Surcharge

The Colorado Court of Appeals issued its opinion in People v. Archuleta-Ferales on Wednesday, December 31, 2014.

Drug Offender Surcharge.

Defendant pleaded guilty to conspiracy to distribute a schedule II controlled substance, a class 3 felony, in exchange for an eight-year prison sentence and the dismissal of other charges. At the providency hearing, the district court advised defendant that there would also be a mandatory $3,000 drug offender surcharge, which could not be waived. Defense counsel asked for clarification regarding the surcharge, arguing that CRS § 18-19-103(6)(a) permitted “at least some portion of [the surcharge], if not all of it,” to be waived if the court found that defendant was financially unable to pay it. The court responded that it couldn’t waive any of the surcharge if it found that defendant could pay any of it.

At sentencing, defense counsel asked the court to waive all but $480 of the surcharge based on defendant’s testimony that she would earn only $4.99 per month while in prison. The court rejected the request.

On appeal, the Court of Appeals held that the district court misconstrued its authority under CRS § 18-19-103(6). The plain language of the statute affords district courts the authority to waive any portion of the otherwise mandatory surcharge that it finds the offender is financially unable to pay. The portion of defendant’s sentence requiring her to pay the entire drug offender surcharge was reversed, and the case was remanded to the district court for reconsideration of defendant’s request to waive at least a portion of the surcharge.

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

Colorado Court of Appeals: Defendant Had Right to Be Present at Competency Hearing but Was Not Prejudiced by Absence

The Colorado Court of Appeals issued its opinion in People v. Wingfield on Wednesday, December 31, 2014.

Attempted Escape—Competency Hearing—Due Process—Waiver—Choice-of-Evils Defense.

Wingfield shared a cell with two other inmates at the Arapahoe County Jail. The three men were caught by the guards digging a trench around the perimeter of the window in an attempt to escape. The guards found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank. Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and sentenced him to eighteen years in the custody of the Department of Corrections.

The Court of Appeals agreed with Wingfield that the trial court improperly allowed his defense counsel to waive his right to presence at the competency hearing. However, Wingfield failed to show how his presence would have been useful to his defense. Therefore, the trial court did not violate his constitutional rights by holding the competency hearing in his absence.

Further, the trial court did not abuse its discretion or violate Wingfield’s due process rights by denying his request for a second competency examination. First, Wingfield never made an offer of proof about what evidence could be presented to establish his incompetence. Second, the trial court had ample opportunity to observe Wingfield’s actions and general demeanor throughout trial to determine his compentency.

Wingfield also contended that the trial court erred when it denied his choice-of-evils defense. He argued that because his cellmates threatened to kill him if he did not assist in their escape attempt, he was justified in assisting them. The trial court found that, although Wingfield faced an imminent threat, he had viable alternatives to going along with the escape. Therefore, the trial court did not err in denying the defense. The judgment was affirmed.

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