April 26, 2015

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.

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: 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.

Tenth Circuit: Death Row Inmate Cannot Show Ineffective Assistance for Failure to Call Witness

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Trammell on Friday, December 5, 2014.

On July 28, 1999, Paul Howell was fatally shot in his Suburban in his parents’ driveway in Oklahoma City. Two days later, police found Howell’s Suburban, canvassed the neighborhood where it was found, spoke to various people, and eventually investigated Julius Jones as the suspect in the killing and robbery. Police also investigated Christopher Jordan as the co-conspirator. Police obtained a warrant to search Jones’ parents’ house, where they found the gun used to shoot Howell wrapped in the bandanna worn during the robbery hidden in a hole in the ceiling above Jones’ room. Police found the weapon’s magazine hidden inside the door chime housing.

Jones and Jordan were charged conjointly with conspiracy to commit a felony and with the murder of Howell. Jones was also charged with possession of a firearm by a convicted felon. Jordan pleaded guilty and agreed to testify against Jones as part of his plea agreement. After a jury trial, Jones was convicted on all three charges. He was sentenced to death on the murder charge, 25 years’ imprisonment on the conspiracy charge, and 15 years’ imprisonment on the weapon charge, to run concurrently.

Jones filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA) asserting 19 propositions of error, including an ineffective assistance of counsel claim based on his trial counsel’s failure to call Emmanuel Littlejohn as a witness. Littlejohn was Jordan’s cellmate, to whom Jordan had confided that Jones was not involved in the murder and robbery and that Jordan had committed the crimes. Jones’s trial counsel, David McKenzie, in his affidavit, stated he had personally interviewed Littlejohn and spoken to Littlejohn’s attorneys, and had decided not to call him as a witness due to concerns about his credibility. The OCCA affirmed Jones’s convictions and sentences, and expressly rejected his ineffective assistance claim. Jones filed a petition for rehearing and motion to recall the mandate. The OCCA granted the rehearing petition but ultimately concluded there was no merit to Jones’s issues on rehearing and denied the mandate motion. The U.S. Supreme Court denied certiorari.

Jones filed an original application for post-conviction relief with the OCCA while his direct appeal was still pending. Proposition One alleged various instances of ineffective assistance of counsel, including allegations that another inmate also overheard Jordan claiming responsibility for the robbery and murder and alleging ineffective assistance for his counsel’s failure to discover this witness. The OCCA denied Jones’s petition for post-conviction relief and expressly rejected Jones’s argument about the other inmate. Jones then filed a petition for federal habeas relief, again asserting an ineffective assistance of counsel claim based on his counsel’s failure to explore the other inmate’s corroborating testimony. The district court denied his petition and refused to issue a COA. The Tenth Circuit subsequently issued a COA on the issue of whether trial counsel provided ineffective assistance by failing to investigate Littlejohn’s claim.

The Tenth Circuit evaluated Jones’s ineffective assistance claim based on the standard set forth in the U.S. Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must show that (1) counsel committed serious errors such that the legal representation fell below an objective standard of reasonableness [the performance prong], and (2) there is a reasonable probability that but for counsel’s errors the result of the proceeding would have been different [the prejudice prong]. Jones conceded that the OCCA’s resolution of the ineffective assistance claim he raised on direct appeal “was likely reasonable.” Jones instead asserted that McKenzie’s failure to seek corroboration of Littlejohn’s proposed testimony was error.

The Tenth Circuit rejected Jones’s arguments, finding them based on the erroneous premise that the OCCA’s resolution rested on Strickland‘s performance prong. The Tenth Circuit instead discerned that the OCCA examined the proffered testimony and decided it would not alter the outcome of the proceedings, therefore implicating the prejudice prong. This effectively disposed of Jones’s arguments on appeal, and the Tenth Circuit affirmed the district court’s denial of Jones’s habeas petition.

Tenth Circuit: District Court Judgment Affirmed Despite Multiple Assertions of Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brinson on Monday, December 8, 2014.

An undercover officer in Oklahoma solicited prostitution from a website called Backpage.com, and agreed to meet a prostitute at a motel in room 123. At the motel, Officer Osterdyk met C.H., who appeared much younger than 21, and she agreed to perform oral sex on him. She had a cell phone open on the bed, and received text messages during the exchange saying “Don’t do nothing. It’s the cops.” After receiving these messages, C.H.’s demeanor changed, and Officer Osterdyk arrested her.

Other officers were in the parking lot of the motel and observed a black SUV approaching room 123. One of the officers spoke to the hotel desk clerk, who reported that room 123 was rented out to Tarran Brinson, a young black male with dreadlocks or braids wearing a red shirt and a red Chicago Bulls hat. The clerk told the officer that Brinson was a “regular” at the hotel and had rented out four other rooms that week, always paying cash. The clerk said that Brinson drove a black SUV and pointed it out in the parking lot. It was the same SUV the officers saw approaching room 123. Roughly 45 minutes later, the officers found Brinson in the parking lot of a nearby motel and arrested him.

Brinson was charged with conspiracy to engage in sex trafficking, sex trafficking of children, attempted sex trafficking of children, use of a facility in interstate commerce in aid of racketeering enterprise, coercion and enticement, obstruction of justice, and obstruction of justice by threat or corruption. After the government presented its case, Brinson moved for a judgment of acquittal on all charges. The court granted his motion as to the obstruction of justice by threat or corruption charge and denied it as to all other counts. A jury convicted Brinson on the remaining six counts. He appealed on six points of error.

Brinson first argued the district court erred by allowing expert witness testimony on child prostitution, arguing the testimony would not have aided the jury’s assessment and it was not reliable because the expert officer was not familiar with the facts of the case. The Tenth Circuit disagreed. The officer presented testimony on certain terms of the child prostitution trade, which proved helpful to the jury because other witnesses used these terms in testimony. Brinson also argued the testimony was not reliable because the expert officer was not familiar with the facts of the instant case. However, his testimony was used to define terms of the prostitution trade, not to verify the facts of the instant case, and there was no error in its admission.

Next, Brinson argued the admission of certain Facebook and text messages violated his Sixth Amendment Confrontation Clause rights. Ample evidence suggested Brinson had authored the Facebook messages, and they were therefore properly admitted as statements of a party opponent, not implicating the Sixth Amendment. As for the text messages, Brinson failed to specify which messages violated his Sixth Amendment rights, so his argument failed.

Brinson also argued the district court erred in allowing introduction of hearsay statements to Officer Osterdyk during his undercover investigation. The statements did not constitute hearsay, as they were not offered to prove the truth of the matter asserted, but rather to explain why Officer Osterdyk was in room 123, why he knew the price of the sexual act, and why he agreed to pay for oral sex. The statements were not hearsay, and the Tenth Circuit found that even if they had been, they were not “testimonial” and therefore no Confrontation Clause violation occurred.

Brinson next argued the district court erred by admitting a certificate authenticating debit card records. The prosecution admitted the certificate to authenticate the records as business records under FRE 902(11). The Tenth Circuit has previously held that such certificates are non-testimonial and therefore do not implicate the Sixth Amendment. Brinson argued that the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), was dispositive, but the Tenth Circuit disagreed, finding instead that the records in Brinson’s case differed from those offered in Melendez-Diaz because the certificate did not contain any “analysis” that would constitute out-of-court testimony.

Brinson argued the evidence obtained after his arrest should have been suppressed, since the police lacked probable cause to arrest him. However, the police had ample reason to arrest Brinson, and there was no error in allowing the evidence obtained after his arrest.

Finally, Brinson argued the evidence was insufficient to support his conviction on each of the six counts. The Tenth Circuit analyzed each count individually and found a reasonable jury could have found Brinson guilty beyond a reasonable doubt of each count.

The Tenth Circuit found that the district court committed no error, and Brinson’s convictions were affirmed.

Electronic Filing and Service Rule of Criminal Procedure Updated

On December 29, 2014, the Colorado Supreme Court approved and adopted Rule Change 2014(17), amending the Colorado Rules of Criminal Procedure. Rule Change 2014(17) amended C.R. Crim. P. 49.5, “Electronic Filing and Service System.” The changes were minor, including updating the web address for the e-filing system, changing capitalization and punctuation, and moving the rule about nunc pro tunc orders. The rule change also added a Committee Comment. A redline of the changes is available here.

For all of State Judicial’s adopted and proposed rule changes, click here.

Tenth Circuit: District Court Erred in Suggesting Offense Level Before Finding Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sabillon-Umana on Monday, December 8, 2014.

Elder Geovany Sabillon-Umana was convicted of drug offenses as part of a larger trafficking scheme. Because of his relatively small role in the scheme, the district court suggested that he should have a base Guidelines offense level of 32 and requested the prosecutor to justify that offense level. The prosecutor offered facts to support the offense level, telling the court that finding Sabillon-Umana responsible for 1.5 kilos of heroin and 1.5 kilos of cocaine would arrive at that offense level, and the court adopted those factual findings. Later in the proceedings, when the defendant requested a sentence reduction for compliance with the prosecution, the court rejected his request, instead finding the prosecution had authority to issue sentence reductions.

The Tenth Circuit found two errors in the district court proceedings. First, the Tenth Circuit sharply reprimanded the district court for reversing the proper order of proceedings by deciding on an offense level before finding facts. The Tenth Circuit evaluated the facts on which Sabillon-Umana’s conviction was based and found he could only be responsible for 1.5 kilos of heroin and cocaine combined, not 1.5 kilos of each, which would reduce his base offense level to 30.

Next, the Tenth Circuit found plain error in the district court’s failure to reduce the sentence due to Sabillon-Umana’s participation with the prosecution. The district court had contemplated a sentence of 72 months prior to stating it would not reduce the sentence unless the prosecution suggested it, and instead arrived at a sentence of 96 months. The Tenth Circuit found that sentencing discretion lies solely in the court.

The case was remanded for resentencing.