February 11, 2016

Tenth Circuit: Defendants Should be Granted Wide Leave to Supplement Habeas Petition

The Tenth Circuit Court of Appeals issued its opinion in Carter v. Bigelow on Tuesday, June 2, 2015.

In 1985, Douglas Stewart Carter was convicted of the murder of Eva Olesen in Provo, Utah. No physical evidence tied Carter to the murder, but his wife tipped off authorities that her husband visited his friend, Epifanio Tovar, the night of the murder, and she suspected her missing .38 handgun may have been used in the murder. When they interviewed Mr. Tovar, he told police that Mr. Carter had left Mr. Tovar’s home in the middle of the night with the intent to steal money and returned in different clothes appearing nervous. Mr. Tovar told police Mr. Carter said he stabbed Mrs. Olesen multiple times, when she did not die he shot her, and he asked Mr. Tovar to dispose of the gun. Mr. Carter was arrested in Nashville, Tennessee, and on the second day of questioning an officer from the Provo Police Department obtained a confession from Mr. Carter. Mr. Carter was charged with first-degree murder, although the only evidence corroborating his confession was the testimony of Mr. Tovar and his wife, Lucia, who spoke only Spanish but testified that she heard Mr. Carter confess to the murder to her husband.

Mr. Carter filed his first state court petition for post-conviction relief in 1995, and the state court denied all his claims. The Utah Supreme Court affirmed. Mr. Carter’s habeas proceedings began in 2002, and in 2005 the federal district court granted Mr. Carter’s request for stay during the pendency of his unexhausted state court claims. In 2008, the district court granted Utah’s motion to lift the stay and reopen the case, and in 2010, the district court granted Utah’s motion to dismiss in part, finding that a number of Mr. Carter’s claims were procedurally barred.

In August 2011, Mr. Carter filed a new motion for a stay to exhaust claims of prosecutorial misconduct based on newly discovered evidence that Epifanio and Lucia Tovar received cash payments and other favorable treatment from the Provo Police Department in advance of testifying. The district court denied his petition. Mr. Carter then moved to amend or supplement his petition, which the district court also denied. The district court subsequently denied his petition for a writ of habeas corpus, and Mr. Carter timely appealed.

The Tenth Circuit noted that authorization to supplement pleadings should be liberally granted, and found that Mr. Carter’s claims of prosecutorial misconduct could have been characterized as an amendment or supplement to his petition, since he sought to supplement before the district court ruled on his motion, his petition contained a claim of improper prosecutorial vouching for Mrs. Tovar, and his initial and amended habeas petition contained claims that the prosecution suppressed evidence of favorable treatment to Mr. and Mrs. Tovar in exchange for their testimony. The district court had relied on a footnote in a Tenth Circuit opinion regarding the victim’s son’s request for mandamus, where that panel of the Tenth Circuit noted that the defendant must follow the procedures in § 2244 for any new claims. The Tenth Circuit found the district court misconstrued the footnote, and did not interpret it to bar supplemental claims. The Tenth Circuit reversed and remanded with directions for the district court to allow supplementation based on BradyNapue, and their progeny. The Tenth Circuit also found that Mr. Carter’s request for supplementation was timely, since the Tovars had been previously unavailable per Utah’s assertions and the prosecution informed Mr. Carter that he had all the information they possessed. The Tenth Circuit found the state’s attempt to bar Mr. Carter’s claims especially disingenuous.

Mr. Carter next contended his guilt-phase counsel was ineffective for failing to obtain the prosecution’s file against Mr. Carter and failing to adequately challenge the admission of Mr. Carter’s confession. The Tenth Circuit found that the failure to obtain the prosecution file was almost certainly error, but the error was harmless because Mr. Carter was unable to show he was prejudiced by the error. The Tenth Circuit supported the Utah Supreme Court’s conclusion that Mr. Carter failed to show prejudice. Next analyzing Mr. Carter’s claim regarding the admission of his confession, the Tenth Circuit again found no error in the Utah Supreme Court’s ruling.

Next, Mr. Carter alleged ineffective assistance of appellate counsel for failing to use evidence in the prosecution’s file to establish his ineffective assistance claim against guilt-phase counsel. The Tenth Circuit again found that Mr. Carter’s argument failed at the prejudice prong of the Strickland analysis. Mr. Carter also argued his resentencing counsel was ineffective for failing to investigate and present mitigating evidence, failing to strike a juror who Mr. Carter claims was racist and supported the death penalty, and failing to challenge the integrity of the proceedings. The Tenth Circuit found that resentencing counsel interviewed Mr. Carter’s family members and presented mitigating evidence. As to the juror, the Circuit noted that although he stated he believed in the “mark of Cain,” or that dark skin represents a punishment for biblical Cain killing Abel, he also stated it would not affect his view of the case at hand, and although he believed the death penalty was warranted for premeditated murder, making the decision to sentence someone to death would haunt him. The Tenth Circuit found no error in allowing the juror on the panel. As to the integrity claim, the jury was specifically instructed that it was not to consider the question of defendant’s guilt or innocence, so this claim failed as well.

The Tenth Circuit also evaluated and rejected Mr. Carter’s claims of violations of the Confrontation Clause due to the admission of transcripts of the Tovars’ testimony at resentencing, and that the admission of his confession violated his right not to be compelled as a witness against himself. As to Mr. Carter’s cumulative error claim, the Tenth Circuit found it premature, and vacated the district court’s denial of habeas relief on this ground until resolution of Mr. Carter’s remaining claims.

The Tenth Circuit reversed the district court’s denial of Mr. Carter’s motion to supplement or amend his habeas petition and remanded for further proceedings on that issue. It vacated the district court’s denial of habeas relief on cumulative error grounds, and affirmed in all other respects.

Tenth Circuit: Exclusionary Rule Should Not Apply When Officer’s Reasonable Belief Mistaken

The Tenth Circuit Court of Appeals issued its opinion in United States v. Esquivel-Rios on Wednesday, March 27, 2015.

Antonio Esquivel-Rios was stopped in Kansas while driving a minivan with Colorado temporary tags. The officer who stopped him ran the temporary tags and received a response that there was no record of the vehicle, and the dispatcher noted that Colorado temporary tags usually don’t return. Because of the non-returning tags, the officer conducted a traffic stop, and a later search revealed over a pound of methamphetamine in a secret compartment in the vehicle. During the initial proceedings in the district court, Esquival-Rios sought to suppress all evidence obtained from the vehicle search, contending the traffic stop violated his Fourth Amendment rights because the officer who stopped him lacked reasonable suspicion of any wrongdoing. The district court disagreed and denied Esquival-Rios’ motion to suppress. He was eventually convicted of possession with intent to distribute methamphetamine.

On direct appeal, the Tenth Circuit remanded, finding “too many unanswered questions” and “too many record ambiguities” regarding the database reliability for the district court to conclude no Fourth Amendment violation had occurred. On remand, the district court conducted an evidentiary hearing, where it heard testimony from the officer, dispatcher, and various Colorado employees, as well as written responses from the Colorado Bureau of Investigation and the Colorado Department of Revenue. The evidence established that at the time of Esquival-Rios’ stop, the Colorado Department of Revenue did not transmit information about temporary tags to the Colorado Bureau of Investigation, which was responsible for maintaining the nationwide database, so every Colorado temporary tag run by an out of state officer would have returned as “no record.” However, the officer and dispatcher both testified they had not been specifically advised that this result would occur with all Colorado temporary tags, and the trooper testified he did not believe the information was categorically unavailable at the time of the traffic stop. The district court found that it had no choice but to conclude that the negative report was not particularized evidence that the vehicle was unregistered, and therefore a Fourth Amendment violation occurred. However, the district court also found no basis to apply the exclusionary rule, since the trooper reasonably relied on his mistaken belief about the database inquiry. Esquival-Rios again appealed.

On appeal, the government contended the officer’s reasonable but mistaken belief was a constitutionally sufficient ground to conduct the traffic stop, and in the alternative that if the court found a Fourth Amendment violation, the exclusionary rule should not apply because there was no police misconduct to deter. The government further contended that deterrence was inappropriate because the problem was remedied—the Colorado Department of Revenue now transmits information on temporary tags to the Colorado Bureau of Investigation for inclusion in the national database.

The Tenth Circuit analyzed the exclusionary rule, and noted that its purpose is to deter Fourth Amendment violations, and suppression is only appropriate when it will result in “appreciable deterrence” or alter the behavior of law enforcement officers. In this case, the “good-faith” exception to the exclusionary rule applied because the officer reasonably relied on the database information. Further, the Tenth Circuit found there was no recurring conduct to deter since the Colorado agencies changed their business practices to ensure that temporary tag information was included in the national database.

The Tenth Circuit affirmed the district court’s decision.

Colorado Court of Appeals: No Error in Allowing Lay Witness Testimony about Shoeprint Similarity

The Colorado Court of Appeals issued its opinion in People v. Vigil on Thursday, July 2, 2015.

Challenge for Cause—Burglary—Simple Variance—Unanimity Instruction—Lay Witness—Footprint Evidence.

A jury convicted Vigil of second-degree aggravated motor vehicle theft and second-degree burglary for taking a truck, motorcycle, flat-screen television, DVD player, and stereo from Casey Caldon’s farm. On appeal, Vigil contended that the trial court reversibly erred when it denied his challenge for cause to juror C.A. Although C.A. had performed electrical work for the Caldons over a number of years, he did not exhibit any bias and his statements indicated he could render an impartial verdict. Therefore, the trial court did not err in denying Vigil’s challenge for cause as to this juror. Vigil also claimed that the court erred in granting the prosecutor’s challenge for cause to prospective juror D.K. because that juror might have voted to acquit him. Here, Vigil’s claim failed because a defendant is not entitled to have any particular juror serve in his or her case.

Vigil also asserted that the prosecutor’s closing argument impermissibly expanded the second-degree burglary charge to include burglary of the “lean-to” (a shed up against a shop on the farm). In the bill of particulars, the prosecutor alleged that Vigil burglarized three structures: the trailer, the north shop, and the tractor. In closing argument, the prosecutor alleged that Vigil entered the lean-to to steal the truck. Therefore, a simple variance occurred. Because Vigil did not suffer prejudice from the simple variance, however, reversal was not warranted.

Vigil further argued that the trial court reversibly erred by not giving a modified unanimity instruction regarding the burglary count. Where the incidents occurred in a single transaction, such as here, the prosecutor need not elect among acts, and the trial court need not give a modified unanimity instruction. Therefore, the trial court did not err by not giving the modified unanimity instruction to the jury.

Vigil argued that the trial court erred by permitting Sergeant Crown, a lay witness, to testify about shoeprint evidence and by not excluding the shoeprint evidence for failing to disclose a Colorado Bureau of Investigation (CBI) report indicating that its analysis of the shoeprint evidence was inconclusive. Crown’s testimony was based on general measurements and peculiarities common to the shoeprints and Vigil’s shoes that were readily recognizable to a lay witness. Accordingly, the trial court’s finding that Crown’s testimony did not constitute expert opinion was not manifestly unreasonable, arbitrary, or unfair. Finally, the discovery violation did not result in reversible error because the content of the CBI report was presented through Crown’s testimony. The judgment was affirmed.

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

Tenth Circuit: No Error in Joint Conspiracy Trial Where Defendant Only Implicated in One Crime

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Friday, May 22, 2015.

Two men robbed an Arvest Bank in Tulsa, Oklahoma in 2011, and a police officer investigating the robbery saw Dejuan Hill driving a car away from the house where the stolen money was found. During Dejuan’s brothers’ trial for the robbery, the police officer recognized Dejuan outside the courtroom. The prosecution changed its theory of the case to include Dejuan as one of the bank robbers, based largely on the officer’s testimony and other circumstantial evidence from cellphone records. Dejuan was indicted, tried, and convicted of both robbing the Arvest Bank and taking part in a larger conspiracy to rob banks, a credit union, and pharmacies in the Tulsa area. Of eight alleged co-conspirators, only three proceeded to a joint trial — Dejuan, his brother Vernon, and Deandre Hopkins. Six robberies were discussed in depth at trial, but Dejuan was only implicated in the robbery of the Arvest Bank. Dejuan appealed his convictions, arguing (1) there was insufficient evidence to convict him of robbing the Arvest Bank, (2) there was a substantially prejudicial variance between the single global conspiracy charged in the indictment and the evidence of individual conspiracies the government produced at trial, (3) the trial court erred by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants, and (4) the trial court erred by denying his motion to exclude gang evidence as unfairly prejudicial under FRE 403.

The Tenth Circuit analyzed the evidence tying Dejuan to the Arvest Bank robbery and found that although it was circumstantial and required the jury to make inferential leaps, it was sufficient to support his conviction. Dejuan was seen leaving the residence where the money was eventually found shortly after the robbery, and someone had used a cellphone right around the time the officer saw Dejuan leaving the house. Further, video footage showed that the robber was approximately the same height as Dejuan and probably had a similar skin tone. The majority of the panel found this evidence sufficient to support his conviction regarding the Arvest Bank robbery.

The Tenth Circuit next addressed Dejuan’s argument regarding the conspiracy charge. Dejuan asserted that at most he could be convicted of a smaller conspiracy to rob the Arvest Bank and the government failed to prove he was part of a larger conspiracy, causing him to be substantially prejudiced. The Tenth Circuit agreed there was a variance, since there was “scant evidence tying Dejuan to any larger conspiracy” other than the Arvest Bank robbery. The evidence presumed to establish Dejuan’s participation in the larger conspiracy was primarily the police department’s certification of his involvement in the Hoover Crips gang, and even the government’s witness was unsure whether Dejuan was a Hoover Crip. The Tenth Circuit next analyzed whether this created a prejudicial spillover, first deciding that the number of conspiracies proved and defendants tried was too small to inherently prejudice Dejuan. The majority panel found that the jury would have no problem distinguishing Dejuan’s conduct from that of his co-defendants. Likewise, the Tenth Circuit found little possibility that the variance would have caused the jury to misuse the evidence, since the evidence was not so intricate the jury could not distinguish Dejuan’s actions. The Tenth Circuit then analyzed the strength of the evidence underlying the conspiracy conviction and found that although it was a close call, the evidence proving Dejuan’s involvement in the smaller conspiracy was strong enough to minimize the danger of prejudicial spillover. The majority found possible benefit to Dejuan of the global conspiracy evidence, since it gave him an avenue to discredit the Arvest Bank evidence.

The Tenth Circuit next addressed Dejuan’s contention that the trial court improperly denied his motion for misjoinder. Dejuan argued the indictment failed to show facts demonstrating a common scheme or involving all of the defendants and all of the charged offenses. Dejuan contended he was prejudiced because the jury heard evidence about robberies in which he was not involved and this led to the possibility of the jury finding his guilt by association. He believes the trial court should have allowed him to have a separate trial to cure the inference of guilt by association. The majority disagreed, finding that Rule 14’s language that the court may provide “any other relief” supported the trial court’s use of limiting instructions. Because Dejuan did not point to any specific instances of prejudice but rather relied on a broad assertion of guilt by association, the court found his assertions insufficient to demonstrate prejudice.

Finally, the Tenth Circuit addressed Dejuan’s argument that the trial court erroneously denied his motion in limine to exclude evidence of his gang affiliation. Because the government introduced no evidence showing his gang membership was relevant to the issues at trial and it was unfairly prejudicial, Dejuan argues the evidence of his gang affiliation should have been excluded. Although the Tenth Circuit acknowledged that the trial evidence established only smaller conspiracies and the only evidence tying Dejuan to the larger conspiracy was his gang affiliation, the Tenth Circuit determined that these two determinations were subject to “hindsight bias” and there was no abuse of discretion at the time the trial court decided to include the evidence.

The majority panel concluded that although Dejuan was correct that a variance existed, it did not prejudice Dejuan so as to necessitate reversal. The district court’s judgment was affirmed in all other respects. Judge McHughs wrote a thoughtful dissent, disagreeing with the majority’s conclusion that the variance did not prejudice Dejuan and noting the weakness of the evidence against him.

Colorado Supreme Court: Admissibility of Alternate Suspect Evidence Should Be Evaluated on Case-by-Case Basis

The Colorado Supreme Court issued its opinion in In re People v. Elmarr on Monday, June 29, 2015.

Alternate Suspect Evidence—Relevance—Hearsay—CRE 403.

In this case, the Supreme Court set forth the proper framework for analyzing the admissibility of alternate suspect evidence. The Court held that the admissibility of such evidence ultimately depends on the strength of the connection between the alternate suspect and the charged crime. The touchstone of relevance in this context is whether the evidence establishes a non-speculative connection or nexus between the alternate suspect and the crime charged. Where the evidence concerns other acts by the alternate suspect, a court must look to whether all the similar acts and circumstances, taken together, support a finding that the same person was probably involved in both the other act and the charged crime. CRE 404(b) principles guide this analysis. In addition, where the evidence concerns statements by the alternate suspect, a court must determine whether the alternate suspect’s statements meet the requirements of CRE 804(b)(3) or any other applicable hearsay exception. Finally, even relevant alternate suspect evidence may be excluded if its probative value is substantially outweighed by countervailing policy considerations under CRE 403, such as the danger of confusion of the issues or misleading the jury, or by considerations of undue delay.

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

Colorado Supreme Court: Proper Remedy for Inadequate Batson Findings is Remand for Further Findings

The Colorado Supreme Court issued its opinion in People v. Rodriguez on Monday, June 29, 2015.

Batson Challenges.

The Supreme Court held that when a trial court conducts an inadequate inquiry into an equal protection challenge to the exercise of a peremptory strike, the proper remedy is to remand the case so that the trial court may conduct the three-part analysis announced in Batson v. Kentucky, 476 U.S. 79 (1986), as it is described in this opinion. An inquiry is inadequate when the trial court’s findings are insufficient to determine whether the challenger has proved that the proponent of the peremptory strike purposefully discriminated against a prospective juror on account of the prospective juror’s race. Here, the trial court applied an incorrect legal standard and overruled defendant’s Batson challenge for failure to demonstrate a pattern of discrimination. In so doing, the court never decided whether defendant established that the prosecutor engaged in purposeful discrimination by striking two minority venire members. Accordingly, the Court ordered the case returned to the trial court with directions to conduct the three-part Batson analysis.

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

Colorado Supreme Court: Defendant Waived Public Trial by Not Objecting to Closed Courtroom During Voir Dire

The Colorado Supreme Court issued its opinion in Stackhouse v. People on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial—Waiver.

At petitioner’s trial, the court closed the courtroom for a portion of voir dire because the large jury pool created the risk of interested members of the public intermingling with the jurors and potentially biasing them. Petitioner’s counsel did not object to the closure at that time or at any time during the trial. The Supreme Court granted certiorari to determine whether petitioner affirmatively waived his right to a public trial in accordance with Anderson v. People, 490 P.2d 47, 48 (Colo. 1971), by not objecting to the known closure. The Court held that Anderson remains controlling, and thus petitioner affirmatively waived his public trial right when he did not object to the known closure. The court of appeals’ judgment was affirmed.

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

Colorado Supreme Court: Court Reviewing Batson Challenge Should Only Reverse for Clear Error

The Colorado Supreme Court issued its opinion in People v. Wilson on Monday, June 29, 2015.

Batson Challenges.

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court created a three-part analysis to uncover and prevent unconstitutional discrimination in the exercise of peremptory challenges. In the instant case, the court of appeals held that the prosecutor necessarily violated Batson and engaged in purposeful discrimination because the record refutes her asserted race-neutral reason for peremptorily striking a black venire member. However, a discrepancy between a strike proponent’s justification and the record of voir dire sometimes reflects a mistaken recollection rather than purposeful discrimination.

The Supreme Court held that an error in recollection does not compel a finding of purposeful discrimination in contravention of the Equal Protection Clause as interpreted in Batson. Rather, the Batson analysis requires the trial court to assess the credibility of the proponent of a peremptory strike and determine whether to believe her race-neutral explanation. Unless the opponent of the strike can prove purposeful discrimination, the trial court should deny the Batson challenge. Because the trial court in this case did not clearly err by accepting the prosecutor’s race-neutral explanation, the Court reversed the judgment of the court of appeals.

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

Tenth Circuit: Totality of Circumstances Provides Reasonable Suspicion for Extended Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Pettit on Wednesday, May 13, 2015.

Michael Pettit was pulled over in Utah after crossing a highway’s fog line multiple times. During the traffic stop, Pettit seemed excessively nervous, produced a suspended Missouri driver’s license after passing over a California license, and reported unusual travel plans to the trooper. The trooper asked permission to search the trunk of the car, which Pettit granted, and conducted a cursory pat-down search of the luggage, finding nothing. The trooper checked Pettit’s licenses, discovered they were both suspended, and completed the citation paperwork, but instead of returning the citation and license to Pettit, the trooper decided to question him further. He requested consent to search the entire car, which Pettit granted, and soon a drug-sniffing dog arrived and alerted to the presence of drugs. Over 2.5 kilograms of cocaine was found hidden in a spare tire in the trunk. Pettit was indicted on one count of possession of cocaine with intent to distribute and was found guilty by a jury. He was sentenced to 10 years’ imprisonment followed by eight years’ supervised release. He appealed the district court’s denial of his motion to suppress the evidence uncovered after the trooper completed the citation.

Pettit contended the trooper unlawfully extended the traffic stop based on “hunches and unjustified generalizations.” The parties agree that the initial traffic stop was lawful since Pettit crossed the fog line multiple times, and they agree that the initial stop ended when the trooper returned with the completed citation. However, since the trooper did not return Pettit’s license and registration at that time, the encounter did not become consensual. The parties disagree about whether there was reasonable suspicion justifying the continuation of the traffic stop at that time. The Tenth Circuit evaluated each factor supporting reasonable suspicion separately and in aggregate.

Pettit first argued his nervousness could not form the basis for reasonable suspicion. However, the Tenth Circuit examined the record and found that the trooper testified with particularity about the excessive nature of Pettit’s nervousness, including that his lower body would not stop shaking, Pettit said twice within 25 seconds that the officer was making him nervous, and his hand was shaking as he gave the trooper his license. The Tenth Circuit next addressed Pettit’s unusual travel plans. Although travel plans in themselves may not necessarily form the basis for reasonable suspicion, the court found that prior to the citation’s completion, the trooper had discovered Pettit was driving cross-country in a vehicle registered to an absent third party, which is consistent with drug trafficking. Next, Pettit argued that the two suspended licenses could not have given rise to reasonable suspicion, but the Tenth Circuit again disagreed, finding the licenses alone could have contributed to the formation of an objectively reasonable suspicion of illegal activity, and could also have heightened the officer’s suspicion about Pettit’s unusual travel plans. Finally, Pettit argued that the officer’s initial fruitless search militated against a finding of reasonable suspicion, but the Tenth Circuit again disagreed, finding the search was only cursory and occurred before much of the officer’s questioning.

Based on the totality of the circumstances, the Tenth Circuit found no error in the district court’s denial of Pettit’s motion to suppress, and found the officer had reasonable suspicion to extend the traffic stop.

Colorado Court of Appeals: Picture of Accused in Photo Lineup Must Match Victim’s Initial Description

The Colorado Court of Appeals issued its opinion in People v. Singley on Thursday, June 18, 2015.

Due Process—Out-of-Court Identification—Photo Lineup—Jury Instructions—Witness Credibility—Subpoena—Testimony—Cumulative.

The victim, J.A.C., was commuting home from work when two men, both carrying handguns, confronted him. When J.A.C. shouted for help, one of the men opened fire, shooting him three times, fracturing his pelvic bone, and causing permanent scarring. Singling and another man were arrested later that evening after robbing another woman. J.A.C. identified Singley as the shooter in a photo lineup. A jury found Singley guilty of attempted second-degree murder, first-degree assault, attempted aggravated, robbery, and felony menacing.

On appeal, Singley contended that the trial court violated his right to due process and a fair trial when it declined to suppress the allegedly impermissibly suggestive and unreliable out-of-court identification, as well as the subsequent in-court identification. Immediately after the shooting, J.A.C. told officers that the shooter was in his 20s with a medium-length Afro. Several days later, the police presented J.A.C. with a photographic lineup built around Singley, which showed six bald men, all of whom appear to be of the same general age as Singley, who was 46. Because the picture of Singley did not match the initial description given by the witness, the trial court erred when it found that the lineup was not impermissibly suggestive. Under the totality of the circumstances, including J.A.C.’s view of the witness at the crime scene and only taking forty-five seconds to identify Singley in the photo lineup, J.A.C.’s identifications of Singley were nonetheless reliable.

Singley contended that the trial court abused its discretion when it refused to give four proposed jury instructions on the reliability of eyewitness identification testimony. The court gave the jury a pattern witness credibility instruction, accurately informing it of the applicable law. Therefore, the trial court did not abuse its discretion when it refused to give Singley’s four additional instructions.

Singley contended that the trial court abused its discretion and violated his right to present a complete defense when it quashed his subpoena of the Aurora police chief. Specifically, he asserted that the court improperly precluded the police chief’s testimony regarding his assistance in helping J.A.C. obtain a U-Visa, which allowed him to reside and work legally in the United States. Singley cross-examined J.A.C. regarding receipt of this U-Visa in exchange for his cooperation in the investigation to establish his motive for testifying and bias. Singley’s counsel also questioned the officer who helped J.A.C. with the U-Visa application. Therefore, the testimony of the Aurora police chief was cumulative and irrelevant, and the trial court did not abuse its discretion when it quashed the subpoena. The judgment was affirmed.

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

Tenth Circuit: Social Media Sharing Can Be “Advertisement” or “Notice” of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Franklin on Monday, May 11, 2015.

Richard Franklin used a website called GigaTribe to share images of child pornography with the “friends” he allowed into his “tribe.” He was found guilty of five counts at trial, including advertisement or notice of child pornography, and received five consecutive sentences totaling 100 years. He appealed, contending the evidence did not support the conviction based on advertisement or notice, the total sentence was unreasonable, and the judge improperly found facts outside the jury to justify the sentence.

The Tenth Circuit first discussed the “advertisement or notice” charge. Franklin’s conviction was based on 18 U.S.C. § 2251(d)(1), which prohibits “any notice or advertisement seeking or offering” to provide or receive pictures of minors engaged in sexually explicit conduct. The prosecution’s theory was that Franklin had provided advertising or notice by making the images available to his 108 GigaTribe “friends.” Franklin argued that because GigaTribe was a closed network and the statute was limited to indiscriminate public communications, his activity did not constitute advertising or notice. Looking to the dictionary definitions of “advertisement” and “notice,” the Tenth Circuit found no limitation of public communication. The Tenth Circuit likened Franklin’s GigaTribe activity to membership at a wholesale club, which would still constitute “public” activity. The Tenth Circuit further noted that Congress  “surely did not intend to limit the statute’s reach to pedophiles who indiscriminately advertise through traditional modes of communication like television or radio.”

Next, the Tenth Circuit addressed the substantive reasonableness of Franklin’s sentence. On each of the five counts, the district court imposed a separate consecutive sentence between 10 and 30 years, for a total sentence of 100 years. The guideline range in Franklin’s case was life imprisonment. However, Franklin argued the guideline range lacks an empirical basis and is unduly harsh. Under prior circuit precedent, the court determined the guideline range deserves consideration regardless of whether it is empirically based. As to the harshness of the sentence, the Tenth Circuit followed Supreme Court precedent to note it cannot apply a “presumption of unreasonableness” even to sentences outside the guideline range.

The Tenth Circuit similarly rejected Franklin’s argument that his sentence was disproportionate to other sentences for similar conduct. Analyzing Franklin’s proffered examples, the Tenth Circuit found none of the sixteen cases he cited involved the same circumstances as his. Because Franklin did not provide any evidence of nationwide disparities, the Tenth Circuit found no abuse of discretion by the trial court.

The district court decision was affirmed.

Tenth Circuit: Buyer-Seller Rule Did Not Preclude Conspiracy Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gallegos on Thursday, April 30, 2015.

A law enforcement investigation of Iran Zamarripa, the regional supervisor of an international methamphetamine ring, led to the arrest and trial of Simona Gallegos. Gallegos was the common law wife of a co-defendant, Pedro Juarez, and she purchased relatively small quantities of meth from Zamarripa on three occasions. Gallegos was tried with three co-defendants and ultimately found guilty of one count of conspiracy to distribute methamphetamine and possession with intent to distribute, two counts of possession with intent to distribute, and one count of use of a communication facility to facilitate the distribution of methamphetamine. Gallegos appealed.

Gallegos’ first argument on appeal was that the district court erred by admitting hearsay statements of her alleged co-conspirators without independent evidence she conspired with them. The Tenth Circuit declined to address the issue, finding Gallegos failed to point to specific statements.

Gallegos next challenged the sufficiency of the evidence supporting all four of her convictions. Gallegos contended the government’s evidence only supported that she obtained methamphetamine for personal use. However, the evidence forming the bases for her convictions showed she purchased the meth for Juarez, and on one occasion because he “ha[d] people[ ] waiting.” Gallegos contended the buyer-seller rule precluded her conviction even if she purchased the meth to distribute, but the Tenth Circuit found that contrary to its own precedent. The Tenth Circuit found the evidence that Gallegos “ha[d] people[ ] waiting” was by itself sufficient to infer an agreement to distribute methamphetamine, and further evidence that meth was delivered to Gallegos and she purchased meth on credit supported her convictions.

The Tenth Circuit also addressed Gallegos’ variance argument. Gallegos argued that the government proved only that she conspired with Juarez, and the evidence created a “spillover effect,” enabling her to be convicted of crimes for which she was not involved. After conducting a plain error review, the Tenth Circuit found little risk of the “spillover,” and certainly not enough to satisfy the third prong of the plain error test. The Tenth Circuit also found Gallegos unable to satisfy the fourth prong of the review.

Gallegos next argued that the district court erred in allowing testimony concerning a co-defendant’s post-arrest request for an attorney. The Tenth Circuit again reviewed for plain error since Gallegos failed to preserve the issue for appeal. Gallegos argued the evidence invited an inference of the co-defendant’s guilt, which was improperly imputed to her. The Tenth Circuit disagreed, finding the prosecution presented distinct evidence as to Gallegos and the other co-defendants.

The district court’s judgment was affirmed.