July 25, 2014

Tenth Circuit: Defendant Who Wanted New Direct Appeal on Merits Denied

The Tenth Circuit Court of Appeals issued its opinion in United States v. Washington on Friday, July 18, 2014.

Defendant Tony Washington was convicted of conspiracy to distribute crack and marijuana and conspiracy to maintain a residence for the distribution of drugs. The district court calculated his base offense level for sentencing purposes based on approximately 890 grams of cocaine base attributed to him. On direct appeal, Washington challenged the sentence, arguing that the district court incorrectly converted the approximately $2,6oo cash found on Washington to 85.05 grams of base cocaine and the estimation that he and his co-contributors purchased 680.4 grams of cocaine base with their pooled money. The Tenth Circuit declined to address the cash conversion issue, noting that only the pooled purchase could reduce his offense level. The Tenth Circuit found sufficient evidence for the pooled purchase and denied Washington’s appeal.

Washington then filed a pro se motion for sentence reduction in the district court based on § 3582(c)(2) and Amendment 750 of the Sentencing Guidelines. He did not challenge the correctness of his base offense level, but instead argued erroneously that Amendment 750 allowed the district court to reconsider its decision to give him a sentence above the bottom of the sentencing range. The district court denied his motion because Amendment 750 did not alter his base offense level and therefore the court was powerless to adjust his sentence. After being appointed counsel, Washington filed another motion for sentence reduction pursuant to § 3582(c)(2), setting forth the history and asking the court to deny his motion so he could appeal to the Tenth Circuit. The government filed a response in which it stated it had no opposition to Washington’s motion being denied. The court denied his motion as requested, and Washington timely appealed to the Tenth Circuit. The government filed a motion to dismiss his appeal, arguing the Tenth Circuit lacked appellate jurisdiction because Washington’s appeal did not fit within the four categories of allowed sentencing appeals under 18 U.S.C. § 3742(a).

The Tenth Circuit first noted that the government unwittingly implicated a circuit split regarding appellate jurisdiction to review sentencing errors. Although Sixth Circuit precedent dictates that § 3742(a) is the sole source of jurisdiction to review denial of a § 3582(c)(2) sentence modification, the Ninth and Tenth circuits have found jurisdiction under § 1291 as well. Following its own precedent, the Tenth Circuit determined it had jurisdiction to hear the appeal. However, it found that Washington’s appeal was in actuality a request for the Tenth Circuit to address the issue it declined under direct appeal, whether the district court erred by converting his cash to base cocaine. The Tenth Circuit discussed the limited and streamlined process for § 3582(c)(2) and decided that nothing in that process allowed it to address an issue unresolved on direct appeal. Because Washington’s appeal did not raise a legal question that could be resolved by reference to the previous Tenth Circuit order but rather sought a brand new direct appeal, the district court’s motion denying his sentence reduction was affirmed. The government’s motion to dismiss for lack of jurisdiction was denied.

Tenth Circuit: Substantial Upward Variance from Sentencing Guidelines Justified by Several Factors

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lente on Friday, July 18, 2014.

Camille Lente consumed between 13 and 19 beers and decided to drive. She veered into oncoming traffic and caused a serious accident in which three people died and both drivers were seriously injured. Her advisory Guidelines range was from 46 to 57 months, but the trial judge sentenced her to 216 months. She appealed, and a divided panel of the Tenth Circuit remanded for more evidentiary findings regarding the variance. On remand, the district court heard testimony and victim impact statements, and concluded a sentence of 192 months’ imprisonment was appropriate. She again appealed, and the Tenth Circuit reversed and remanded a second time. The Tenth Circuit concluded the district court had procedurally erred by failing to address Lente’s argument that the sentence created unwarranted disparities.

On remand for the second time, the parties again supplemented the record with extensive additional evidence, including competing expert testimony. After discussing its sentencing discretion, identifying the sentencing factors listed in 18 U.S.C. § 3553(a), and accurately noting the undisputed Guidelines range of 46 to 57 months, the court held that a within-Guidelines sentence would be “woefully inadequate.” The court again imposed a 192-month sentence. Lente once again appealed.

Lente contended on appeal that the district court committed both procedural and substantive errors. She argued that the court committed procedural error by failing to consider the role her passenger played in the crash, and by failing to address her argument that multiple-fatality crashes should not be punished more harshly than single-fatality crashes. The Tenth Circuit, however, determined that the district court carefully considered and rejected those arguments, and instead of speaking to procedural errors, Lente’s real contention is with the substantive reasonableness of those considerations.

Addressing the substantial upward variance based on the multiple-fatality crash, the Tenth Circuit examined the legislative history of the Sentencing Guidelines and discussed that the Sentencing Commission has repeatedly expressed concern that the Guidelines do not adequately address involuntary manslaughter or multiple fatality situations. Although the Tenth Circuit agreed somewhat with Lente that the multiple deaths are more the result of chance than additional culpability, it agreed with the district court that multiple-fatality drunk driving crashes are not adequately addressed by the Guidelines. The Tenth Circuit determined that the district court acted within its discretion in imposing a significant upward variance in this instance.

Another factor considered by the district court in sentencing was Lente’s extreme recklessness. The Tenth Circuit agreed with the district court that Lente acted with extreme recklessness, citing as support Lente’s BAC of .21 two hours after the accident, the high traffic volume on the road, her excessive alcohol consumption, and a comparison of her conduct with similar offenses. The Tenth Circuit found no error in the district court’s conclusion.

The district court also concluded that Lente’s criminal history was significantly underrepresented in the Guidelines, since many of her previous convictions were for violations of tribal law and she was not assessed criminal history points for these. The district court noted that four of Lente’s prior convictions were for disorderly conduct after becoming intoxicated, which indicated a repeated willingness to abuse alcohol and engage in violent and destructive behavior. The Tenth Circuit found no error in the district court’s evaluation of Lente’s criminal history.

Further, Lente’s substance abuse and criminal behavior continued post-conviction. Recorded prison calls showed Lente repeatedly abused narcotics while incarcerated. She also indicated she planned to become intoxicated upon her release and had used alcohol at least once while in prison. She had two prison disciplinary sanctions for use of drugs or alcohol, as well as a number of other offenses. She was expelled from a drug education class and failed to apply to prison drug treatment programs. Her post-conviction conduct supports a conclusion that she was likely to reoffend. The district court’s conclusion that an upward variance was necessary to protect the public and deter criminal conduct was reasonable.

Finally, Lente argues that her sentence was disparate from other similar offenders. Although Lente cited several cases in support of her argument, the Tenth Circuit distinguished her case, noting that the cases she cited generally involved fewer BACs and fewer fatalities, and the cases with more fatalities involved different circumstances.

The Tenth Circuit affirmed the district court’s sentence.

Colorado Court of Appeals: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Tenth Circuit: Ample Circumstantial Evidence Showed Defendant’s Knowledge of Firearm Possession

The Tenth Circuit Court of Appeals issued its opinion in United States v. Morales on Tuesday, July 15, 2014.

Defendant Morales was a passenger in a vehicle that was pulled over for a traffic stop. As soon as the vehicle stopped, Morales fled on foot. Officers chased him and apprehended him about a block away. A shell casing was found in the vehicle, and the officers retraced Morales’ flight path, finding a loaded gun and a cell phone. Morales was convicted of being a felon in possession of a firearm and sentenced to 86 months’ imprisonment. He appealed the conviction, claiming that there was insufficient evidence that he knowingly possessed the firearm. Morales also argued his Fifth Amendment due process rights were violated when he was handcuffed and transported through a common area of the courthouse in view of the venire.

The Tenth Circuit first examined Morales’ claim that he did not knowingly possess the firearm. Morales asserted that, because there was no direct physical evidence that he carried or dropped the evidence, his conviction could not stand. The Tenth Circuit reviewed the record and noted that there was ample circumstantial evidence linking Morales with the firearm, including that it was found free of debris, dirt, or moisture which indicated it had been recently discarded; the weapon was found along Morales’ flight path; and the weapon was found along with a cell phone that Morales claimed upon his release from jail. Viewing the evidence in the light most favorable to the government, the Tenth Circuit discerned that it was sufficient to support the jury’s finding of knowing possession.

The Tenth Circuit next reviewed Morales’ claim of due process violation and determined that none occurred. There was no evidence that actual jury members saw Morales in handcuffs, and there was no showing of prejudice based on speculation that possible jury members might have seen him handcuffed. Further, the court had adequate justification for permitting the visible handcuffs based on Morales’ previous convictions for escape and violence against law enforcement.

The Tenth Circuit affirmed Morales’ conviction and denied his request for a new trial.

Tenth Circuit: Defendant’s Own Prejudicial Conduct to Jury Member Does Not Warrant Mistrial

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shaw on Friday, July 11, 2014.

Defendant Charles Shaw was convicted in the U.S. District Court for the District of Kansas of robbing a bank and two credit unions, attempting to rob one of the credit unions a second time, and four firearms-related offenses. He was acquitted on a charge of robbing a second bank. During jury selection, Defendant mouthed “call me” to a juror and made a gesture like a phone to his ear with his hand. At trial, testimony was admitted regarding a co-defendant’s confession on the charge of which he was acquitted, and evidence was admitted regarding an uncharged bank robbery. Defendant appealed his convictions to the Tenth Circuit, alleging (1) the jury was not impartial because they learned of the gesture he made to one member of the jury pool, (2) the district court erred by admitting evidence regarding the co-defendant’s confession at a different trial, (3) the district court erred by admitting evidence of the uncharged bank robbery, and (4) the court at sentencing, not the jury, found he had previously been convicted of a firearms offense.

The Tenth Circuit examined the trial transcripts regarding Defendant’s gesture during jury selection. It found no error, because the juror to whom the gesture was directed had been dismissed, and another potentially biased juror was rehabilitated through questioning. The Tenth Circuit also noted that it shared the district court’s concern regarding declaring a mistrial as a result of Defendant’s own conduct.

Next, the Tenth Circuit reviewed Defendant’s motion in limine asserting error for admitting the testimony regarding his co-defendant’s confession. The Tenth Circuit found that the admission of the testimony violated Defendant’s Sixth Amendment Confrontation Clause rights, but the error was harmless beyond a reasonable doubt because Defendant was acquitted on the sole charge related to this testimony.

The Tenth Circuit then turned its attention to the admission of evidence regarding the uncharged bank robbery, and again found error in the district court’s denial of Defendant’s motion in limine. The Tenth Circuit agreed with Defendant that it was impermissible other bad act evidence under FRE 404(b), but decided this error was also harmless because the evidence was tenuous at best and other evidence of Defendant’s guilt was strong.

Finally, the Tenth Circuit reviewed Defendant’s sentencing challenge. Defendant objected to the trial court’s judicially found fact of his prior firearms conviction, and, although he conceded that Tenth Circuit and U.S. Supreme Court precedent do not support his position, he raised the argument on appeal “to preserve Supreme Court Review.” The Tenth Circuit, following its previous precedent, affirmed Defendant’s sentence and convictions.

Tenth Circuit: Denial of Suppression Motion Upheld Where Other Evidence of Guilt Overwhelmingly Supported Conviction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mulliken on Tuesday, July 15, 2014.

John Edward Mulliken solicited participants for purported weight loss studies in 2006 and 2008. In 2008, the FDA began investigating two studies, and as a result of the investigation, Mulliken was indicted by a grand jury sitting in the District of Colorado in November 2011. The indictment consisted of 19 counts of mail fraud. Mulliken was arrested in January 2012 at his residence. In August 2012, a superseding indictment issued asserting the same 19 counts of mail fraud, alleging that the purported weight loss studies were part of an “advance fee scheme” in which Mulliken made false representations intended to induce participants to mail deposits that Mulliken had no intention of refunding. In September 2012, Mulliken’s house was searched pursuant to a warrant, and two hard drives, a computer, two binders, and two folders were seized.

Mulliken was tried before a jury and convicted of 17 counts of mail fraud. Prior to trial, he moved to suppress the contents of the search, but the district court denied suppression. Mulliken appealed the denial of suppression to the Tenth Circuit, arguing that the affidavit underlying the search warrant failed to establish probable cause that the items would be found at his residence, that the affidavit failed to establish a nexus between the criminal acts and his residence, and that the list of items to be seized in the search was impermissibly broad.

The Tenth Circuit did not reach the merits of Mulliken’s arguments, determining instead that any error that could have come from the denial of suppression was harmless beyond a reasonable doubt. Only four exhibits were introduced at trial related to the search. Two of them were pictures of computers, one was a copy of an electronic document regarding one of the purported studies, and one was a copy of an email exchange between Mulliken and his father regarding allegations made on Good Morning America. The Tenth Circuit determined that there was overwhelming evidence of Mulliken’s guilt, including testimony from all 17 victims of the 17 counts of conviction. The Tenth Circuit further found that the two pictures could not have influenced the jury, since they were simply pictures of computers. The contents of the document regarding purported studies were largely duplicated by Mulliken’s own testimony. The only potentially harmful part of the email exchange was admitted separately, having been obtained from Mulliken’s father independent of the potentially illegal search. Because there was overwhelming evidence of Mulliken’s guilt and the four exhibits gained from the search in question had little to no impact on the jury, the district court’s denial of the suppression motion was upheld.

Tenth Circuit: Anonymous Tip Was Reasonable Basis for Warrantless Search of Probationer’s House

The Tenth Circuit Court of Appeals issued its opinion in Leatherwood v. Welker on Tuesday, July 8, 2014.

Leatherwood was serving probation when his former wife called his probation officer, Denise Welker, to inform her that Leatherwood had raped his current girlfriend, who had filed a restraining order against Leatherwood. The former wife also indicated that Leatherwood might have weapons in his possession, specifically in his truck, in a safe, and on a shelf in his garage. Welker also received an anonymous email tip that Leatherwood had sent emails of a sexual nature to his girlfriend and that he possessed alcohol and sexual materials and devices. Possession of firearms and sexually explicit material was prohibited under the terms of his probation.

Welker met with other corrections officers and obtained permission to conduct a warrantless search of Leatherwood’s home. Firearms were found in the search. Leatherwood initiated litigation, seeking declaratory and monetary relief under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. Defendants moved for summary judgment on qualified immunity grounds, which was denied. Defendants appealed the denial of summary judgment.

The Tenth Circuit reversed, noting that defendants had ample reason for conducting the warrantless search, given the phone call from the former wife and the anonymous email. The Tenth Circuit has allowed  searches of probationers based on anonymous or unverified tips many times previously and found that the search was reasonable and the defendants were entitled to qualified immunity.

Tenth Circuit: Notice of Fraudulent Testimony Determined on Date of Testimony, Not Date on Which Affidavit Obtained

The Tenth Circuit Court of Appeals issued its opinion in Taylor v. Martin on Tuesday, July 8, 2014.

Taylor was convicted of first-degree murder and shooting with intent to kill in Oklahoma on May 9, 2009. He appealed to the Oklahoma Court of Criminal Appeals, which affirmed his convictions. He did not appeal that affirmance to the U.S. Supreme Court. On September 16, 2011, Taylor applied for post-conviction relief in state court, based on an affidavit that a government witness, Mr. Cheatham, had lied when he testified that Taylor confessed to the murder. The state court denied his motion and Taylor again appealed to the OCCA, which affirmed the denial. On June 19, 2013, Mr. Taylor filed a petition under 28 U.S.C. § 2254 in federal district court. The government moved to dismiss his petition as time-barred, and the district court agreed. Taylor’s case was dismissed with prejudice and he was denied a Certificate of Appealability (COA). Taylor appealed to the Tenth Circuit.

The Tenth Circuit applied 28 U.S.C. § 2254 and found that Taylor’s claims were time-barred. His convictions became final on May 17, 2011, after the OCCA concluded its review and his 90-day period for appealing to the U.S. Supreme Court expired. Given the statutory tolling for his post-conviction proceedings, Taylor would have had until April 5, 2013 to file his petition. Further, the date on which Cheatham’s perjury was discovered was the date of the testimony, not the date on which he submitted an affidavit to that effect.

The Tenth Circuit denied the COA and dismissed the appeal.

Tenth Circuit: Religious Iconography Testimony Irrelevant and Not Harmless to Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Medina-Copete on Wednesday, June 3, 2014.

Maria Vianey Medina-Copete (Medina) and Rafael Goxcon-Chagal (Goxcon) were traveling in a borrowed truck through New Mexico when they were pulled over for following another vehicle too closely. Officer Chavez, who stopped the vehicle, became suspicious that Medina and Goxcon were engaged in drug activity because of the overwhelming odor of air freshener coming from the vehicle, Medina’s nervousness and chanting of a prayer to Santa Muerte, and the changes in Medina’s and Goxcon’s behavior when questioned about the presence of methamphetamine in the vehicle. Chavez, who is not fluent in Spanish, had difficulty communicating with Medina and Goxcon, who are not fluent in English. Eventually, Chavez obtained consent to search the vehicle with a form written in Spanish, and a drug sniffing dog alerted to the glove box on the passenger side of the truck. After a thorough search, a secret compartment was found on the vehicle containing nearly two pounds of 90% pure methamphetamine.

Medina and Goxcon were placed under arrest, and subsequent to their arrests were interviewed by Spanish-speaking DEA officials. They gave conflicting stories to the DEA officials. At the end of her interview, Medina asked to retrieve her personal belongings from the vehicle, a black duffel bag. The officer who retrieved the bag found a handgun under a piece of clothing. In an indictment, Goxcon and Medina were jointly charged with conspiracy to possess with intent to distribute methamphetamine, possessing with intent to distribute methamphetamine, and using or carrying a firearm in connection with a drug trafficking crime. Medina was also charged with being an illegally present alien in possession of a firearm and with illegal reentry.

In their joint trial, Medina and Goxcon asserted that they had no knowledge of the drugs in their borrowed vehicle. Two experts testified against them, United States Marshal Robert Almonte of the Western District of Texas and DEA Agent Ivar Hella. Almonte testified about his research into religious iconography and its significance in the drug world, specifically Santa Muerte to whom Medina was furiously praying during the traffic stop. Hella testified about drug trafficking between this country and Mexico, and that blind mules are rarely used as drug couriers because of the risks of accidental discovery of the drugs. Medina and Goxcon challenged both experts’ testimony. The jury returned guilty verdicts against both defendants on all counts, and defendants timely appealed.

Defendants asserted that the trial court erred by allowing Almonte to testify, and that his testimony violated FRE 403, 702, and 704(b), as well as their First Amendment rights. The Tenth Circuit evaluated Almonte’s testimony in light of the factors set forth in Daubert and Kumho Tires, and found that his testimony regarding Santa Muerte did not qualify as explicative of a “tool of the trade,” because it was unclear how praying to a religious figure could be a tool in the drug trade. The Tenth Circuit analogized the religious iconography to finding baggies or a razor blade, which can easily be understood to be tools of a drug trade despite their common household use, and found that there was no similar utility to the religious symbols. The Tenth Circuit noted that the district court’s failure to examine how Almonte’s testimony could assist the jury also affected its reliability. Citing a concurrence from the Eighth Circuit analyzing Almonte’s testimony in a different case, the Tenth Circuit found that there was no causal connection between religious iconography and the drug trade, so his testimony was not sufficiently reliable. Because the Tenth Circuit found error in admitting Almonte’s testimony, it evaluated whether the error was harmless, and determined that it was not. The government did not have a strong case against Goxcon and Medina, so the chance that the religious iconography testimony prejudiced the jury was great.

As to Hella’s testimony, the Tenth Circuit found no error. His testimony was relevant to show that it was less likely that Goxcon and Medina were unaware of the presence of methamphetamine in the truck due to various factors, including the unlikelihood of using blind mules and the strong smell of pure methamphetamine.

The Tenth Circuit also reviewed Medina’s assertion that the government had insufficient evidence to convict her, and disagreed. The case was remanded to the district court to vacate the convictions based on drug trafficking and for further proceedings consistent with the opinion. Because Medina did not challenge her illegal reentry or possession of firearm by an illegal alien convictions, the Tenth Circuit did not vacate them.

Tenth Circuit: Judge’s Comments Could Not Be Shown to Have Influenced Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Johnson on Wednesday, July 2, 2014.

Vanity Johnson pleaded guilty to aggravated identity theft and conspiracy to commit bank fraud, aggravated identity theft, and mail theft. As part of her plea agreement, Johnson admitted that she committed the criminal acts knowingly, voluntarily, and willingly, but asserted that she was a victim of violence at the hands of co-defendant Mario Diaz and that she was coerced into performing the acts because he would beat her if she did not perform them. Despite the appeal waiver in Johnson’s plea agreement, she appealed the imposition of the sentence against her, alleging that the district court injected gender bias into its sentencing decision and allowing the sentence would be a miscarriage of justice. However, she did not raise the gender bias issue at the sentencing hearing.

The Tenth Circuit reviewed the actions of the district court for plain error and found none. After sentencing, the district judge commented that he believed both parties were generally involved in domestic violence cases, and that as a mother of two young children she should obey all the laws, referencing Johnson’s repeated minor traffic violations. The Tenth Circuit noted that the remarks occurred after imposition of the sentence, and at best Johnson could only speculate that the remarks influenced her sentencing, which is not enough to show plain error. The judge remarked that he did not hold the domestic violence against Johnson, but that he felt probation was inappropriate based on her misconduct in the traffic violations, for which she would not have been coerced by Diaz.

The Tenth Circuit granted the government’s motion to enforce the appeal waiver. As to Johnson’s motion to seal her opposition to the motion to enforce, the Tenth Circuit instead allowed her to submit for filing a version of the motion with sensitive materials redacted.

Tenth Circuit: No Need to Suppress Contents of Consensual Search After Legal Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Salas on Tuesday, July 1, 2014.

Defendant Salas was driving through Oklahoma on his way from Arkansas to Texas when he was pulled over by Deputy Gragg for erratic driving. Salas had crossed the fog line on the right side of the lane twice, forming the basis for the traffic stop. Gragg issued Salas a warning for the traffic violations and told him he was good to go, but when Salas shook Gragg’s hand, the deputy asked him if he would mind answering more questions. Gragg asked Salas if he could search the vehicle and Salas consented. The dash cam in the patrol car recorded this interaction. Gragg’s search revealed nine one-gallon ziploc baggies of methamphetamine, weighing nearly 20 pounds. Salas was arrested and charged with one count of possession with intent to distribute methamphetamine. Salas moved to suppress the contents of the search, arguing that Gragg lacked reasonable suspicion to stop Salas and that he did not validly consent to the search.

The district court denied suppression, finding that Gragg had reasonable suspicion to stop Salas based on just one of the two fog line violations. After his motion to suppress was denied, Salas entered a guilty plea. The district court accepted the presentence report’s base offense level and sentenced Salas to 151 months’ imprisonment with three years’ supervised release. Salas challenged both the search and the imposed sentence.

The Tenth Circuit determined that the initial traffic stop was lawful based on the fog line violations, one of which would have been enough to raise reasonable suspicion in the officer. Although Salas’ initial fog line violation occurred near a curve in the road, it would not have been enough to cause a driver to veer halfway over the fog line, and the vehicle he was driving was a four-door sedan that would not have been susceptible to light winds. Because the initial stop was lawful, the Tenth Circuit did not need to apply a heightened standard to the legality of Gragg’s search. Salas had consented to the search after the traffic stop had ended and the encounter became a consensual one, and his consent was recorded on the officer’s dash cam. Therefore, the Tenth Circuit determined that there had been no Fourth Amendment violation.

Salas also argued that his sentence should be reduced because of his acceptance of responsibility. However, the purpose of the sentence reduction is to mitigate trial preparation costs, and Salas did not enter the guilty plea until the day the government filed its trial brief. The government was not required to offer the sentence reduction and did not do so in this case, since it had already begun trial preparation and there was no cost mitigation. The Tenth Circuit determined no error in the government’s failure to offer the sentence reduction.

The district court’s order denying suppression and the sentence were affirmed.

Colorado Court of Appeals: Strategic Choices by Defense Attorney Do Not Constitute Ineffective Assistance

The Colorado Court of Appeals issued its opinion in People v. Newmiller on Thursday, July 3, 2014.

Ineffective Assistance of Counsel.

Defendant, his brother, and their friends went to a strip club in Colorado Springs to celebrate defendant’s birthday. When the group was leaving the club, they had an altercation with another group (victim’s group) regarding a comment someone in the victim’s group had made to a dancer. The two groups confronted each other soon after, and the victim was stabbed in the heart. He later died from his injuries.

On appeal, defendant argued that his trial attorneys were ineffective. To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Here, counsel’s failure to request a lesser included offense instruction or consult with defendant on the matter did not constitute ineffective assistance, because it was an adequately informed strategic choice by defendant’s attorneys. Additionally, contrary to defendant’s assertions, counsel’s failure to request an instruction on the lesser non-included offense of accessory to crime did not constitute ineffective assistance, because there was no factual basis for this requested instruction; it could be considered a strategic choice by defendant’s attorneys. Further, the level of investigation by defendant’s counsel and the subsequent decision not to retain a medical expert clearly met the standard of reasonably competent assistance. Also, defendant has not shown that, in light of all the circumstances, counsel’s failure to call a crime scene reconstruction expert was “outside the wide range of professionally competent assistance.” Finally, one attorney discussed the case with defendant on multiple occasions and this attorney’s advice to defendant regarding his right to testify was within the range of competence demanded of attorneys in criminal cases. Therefore, defendant failed to prove that his attorneys were ineffective. The district court’s order denying defendant’s Crim.P. 35(c) motion for post-conviction relief was affirmed.

Summary and full case available here.