May 26, 2015

Tenth Circuit: Unregistered Firearm Charge Upheld Even Where Defendant Could Not Register Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Berres on Wednesday, January 21, 2015.

Bryan Berres entered a propane company in Oklahoma and set his backpack by the front door. Berres first asked if he could call his wife, then requested employees call an ambulance to take him to the VA hospital. Employees, suspecting Berres needed psychiatric treatment, called the ambulance. Medical personnel asked Berres if he had weapons. He relinquished a knife and said he had a .38 pistol in his bag. Police were called, and when they questioned Berres about the bag, he told police it also contained a flash bang device, electric matches, 8″ leads, and squibs. The propane company was evacuated, and Berres was transported to the hospital.

While at the hospital, an ATF agent from the Drug and Violent Crime Task Force interviewed Berres about the contents of the bag. Berres was “more than willing” to talk with the agent, and relayed that the bag contained a flash bang device, a .38 pistol, about 50 feet of Class C squib, about 70 feet of red paper fuse, two pounds of black powder, and night vision goggles. Berres relayed that he was taking the items to a wooded area to “get the government out of his body.” The agent spoke with the ATF officers at the propane store and they safely opened the backpack, finding a flash bang device, two cans of black powder, six feet of cannon fuse, 36 electric matches, 60 feet of quick match fuse, a .38 pistol, nearly 300 rounds of .38 ammunition, and 30 rounds of .223 ammunition. Berres was subsequently placed on a 72-hour mental health hold by hospital personnel.

Berres was eventually charged with three counts of possession of unregistered firearms, one for the flash bang device (Count 1) and two for combinations of parts from which an explosive device can be readily assembled (Counts 2 and 3). He filed a motion to dismiss, arguing that Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device, and that Counts 2 and 3 were multiplicitous. He also filed a motion to suppress the statements he made to the ATF agent at the hospital. The district court denied his motions but said that he could raise his multiplicity argument again at trial. Berres pled guilty before trial, specifically reserving his right to appeal.

On appeal, Berres argued first that his conviction on Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device as a transferee; flash bang devices must be registered by the maker or transferor and the transferee must be identified as part of the registration process. The Tenth Circuit, however, found that even though Berres could not register the device, it was legally registrable, and therefore the Tenth Circuit upheld his conviction on this count.

Berres next argued that Counts 2 and 3 failed to state an offense, because there is no duty to register an explosive device until it is assembled. The Tenth Circuit disagreed. The Tenth Circuit found that the statutory language “any combination of parts” precluded Berres’ argument. Berres next argued that Counts 2 and 3 were multiplicitous, since he could only make one explosive device from the parts. However, the indictment listed each can of black powder as a single ingredient, so the combinations of black powder canisters, cannon fuse, and electric matches could have been used to make more than one explosive device. The Tenth Circuit found no double jeopardy in the two counts.

Finally, Berres argued that his statements to the agent at the hospital should have been suppressed. The Tenth Circuit examined the circumstances of the interview and found it to be non-custodial. Berres was at the hospital at his own request, he was seated by the door during the interview, and he stated he was “more than willing” to talk with the agent. The Tenth Circuit found no error in allowing Berres’ statements.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Pretrial Motion Insufficient to Preserve Issue for Appellate Review

The Colorado Court of Appeals issued its opinion in People v. Dinapoli on Thursday, February 12, 2015.

Assault—Jury—Modified Allen Instruction—Mistrial—Pretrial Ruling—Contemporaneous Objection.

K.M.’s dog and defendant’s dog “got into a tussle.” After the dogs separated, K.M. and defendant engaged in a physical altercation, during which defendant hit K.M. with a tree branch, dislocating her arm. Defendant claimed it was self-defense. The jury found defendant guilty of one count of second-degree assault.

On appeal, defendant contended that she was entitled to a new trial because the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict. In response to the jury’s concern that they could not reach a verdict on the fourth charge, the court gave the jury a modified Allen instruction and instructed the jury to continue deliberations (Allen v. United States, 164 U.S. 492 (1896)). Trial courts are not required to supplement a modified Allen instruction with a mistrial advisement. Therefore, defendant was not entitled to a new trial on this argument.

Defendant also contended that she was entitled to a new trial because the prosecutor committed misconduct by referring to K.M. as the “victim” during trial. Although defendant obtained a pretrial ruling that precluded the parties from referring to K.M. as the victim, she never sought to enforce that ruling at trial with a contemporaneous objection. Because this error was not obvious and did not constitute plain error, defendant was not entitled to a new trial on this argument. The judgment was affirmed.

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

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

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

Colorado Court of Appeals: No Error in Denial of Crim. P. 35(c) Postconviction Relief Motion

The Colorado Court of Appeals issued its opinion in People v. Romero on Thursday, February 12, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Fifth Amendment—Sixth Amendment—Right to Counsel—Competency—Prosecutorial Misconduct.

Romero was convicted of first-degree murder for shooting A.S. He was sentenced to life in prison without the possibility of parole. He filed a motion for post-conviction relief pursuant to Crim.P. 35(c), which was denied without a hearing.

On appeal, Romero contended that attorney F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. Romero’s Fifth Amendment right to counsel had not attached because the police interview was not custodial. Romero’s Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s pre-indictment representation failed.

Romero contended that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. Because F.G. did not represent Romero during any critical stages of the case, did not help him prepare his defense, and did not otherwise appear on his behalf, the constitutional guarantee of effective assistance did not apply. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s post-indictment advice also failed.

Romero further contended that D.J. and R.C. ineffectively assisted him when they (1) allowed him to be tried while incompetent, and (2) failed to object contemporaneously to alleged prosecutorial misconduct at trial. The record reflects that defense counsel raised the issue of Romero’s competency numerous times, and the court made adequate rulings on the record each time. In regard to Romero’s claims of prosecutorial misconduct, even assuming that the prosecutor’s statements were improper and that counsel’s failure to object constituted deficient performance, Romero failed to allege facts demonstrating prejudice. Therefore, the post-conviction court did not err in dismissing these claims without an evidentiary hearing. The order was affirmed.

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

Colorado Court of Appeals: Period of Probation Under Deferred Judgment Does Not Count when Deferral Revoked

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, February 12, 2015.

Probation Termination—CRS § 18-1.3-1008(2).

In 2002, Anderson pleaded guilty to one count of sexual assault on a child, a class 4 felony, and one count of unlawful sexual contact, a class 1 misdemeanor. As part of the plea agreement, Anderson entered into a stipulation for a deferred judgment and sentence on the felony count, which continued the case for four years.

Three years later, the probation department filed a revocation complaint claiming Anderson had been unsuccessfully terminated from his sex offender treatment program for violating his treatment contract and was in arrears on payments toward the costs of his supervision. Anderson admitted to the violations and the district court revoked his deferred judgment and probation.

At a March 2006 hearing, the court sentenced Anderson to probation for ten years to life on the felony count. In August 2013, Anderson moved to terminate his probation and for a review hearing under CRS § 18-1.3-1008(2). He argued that he had been on probation for eleven years. He acknowledged that his deferred judgment had been revoked but claimed he had maintained compliance with his probation. Although the probation department agreed he had successfully completed his treatment, it stated it could not recommend termination because he had not completed ten years of probation. The district court denied Anderson’s request without a hearing.

On appeal, Anderson argued that the period during which he was supervised in connection with his unsuccessful deferred judgment constituted probation within the meaning of CRS § 18-1.3-1008(2). The Court of Appeals was not persuaded. Under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), a district court may sentence a sex offender to probation for at least ten years for a class 4 felony. After serving ten years of probation, the offender may petition the court to be discharged from the indeterminate probation sentence. There is no discretion to terminate probation before a sex offender has completed the minimum term of probation. The Court rejected Anderson’s argument that supervision under a deferred judgment is the same as probation under SOLSA. His argument contravenes the plain language of the statute.

The Court concluded that the district court correctly determined it did not have authority to consider Anderson’s request at the time it was made. Accordingly, the order was affirmed.

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

Tenth Circuit: District Court Required to Review All Circumstances in Determining Validity of Batson Challenge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Vann on Friday, January 16, 2015.

Rayvell Vann paid cash for a one-way Amtrak ticket from Los Angeles to Kansas City two hours before the train departed. A confidential informant relayed the unusual circumstances of the ticket purchase to DEA Agent Small in Albuquerque, and when the train made a scheduled stop in New Mexico, Agent Small boarded the train and located Vann. After a brief conversation, Agent Small asked to search Vann’s bags and he consented. The search revealed two bottles of codeine, 25 OxyContin pills, and two jars containing approximately 100 grams of PCP. Vann was interrogated and admitted to dealing drugs, but he contended he did not know the PCP was in the box where the pills were found because he had shipped the PCP via UPS. He was charged with two counts of possession with intent to distribute PCP and codeine, and was convicted on both counts. He dismissed his attorneys at sentencing, deciding instead to proceed pro se, and was sentenced to 15 years’ imprisonment. He appealed, raising four issues.

Vann’s first issue on appeal was that the district court committed legal error during jury selection because it improperly administered the three-part Batson test after the government moved to strike the sole African-American member of the venire. Both sides concede that the other party met its obligation as to the first and second parts of the Batson test, so the Tenth Circuit analyzed only the third part — the district court’s obligation to consider all circumstances in determining whether there was racial animosity in the juror strike. During trial, Vann objected to the prosecution’s strike of the juror, but Vann also filed a post-trial Rule 33 motion, arguing that the government’s reasons for striking the juror were pretextual. The Tenth Circuit examined the record, acknowledging the record was limited as to the district court’s reasons for accepting the prosecution’s race-neutral explanations. However, the Tenth Circuit noted that its precedent makes clear that the district court need not make a complete record as to the reasons for denying a Batson challenge, although the better practice may be to complete the record. As to Vann’s post-trial motion, the Tenth Circuit strongly discouraged the practice, finding that this put the district court into an awkward position. Vann could have instead reiterated his Batson challenge after the completion of voir dire but before the jury was empaneled, which would have allowed the court to adequately compare similarly situated jurors before the trial began.

Vann next contended the district court erred by allowing Agent Small’s expert testimony at trial. Vann does not claim error in the court’s qualification of Agent Small as an expert, contesting only the reliability of the testimony. The Tenth Circuit noted that the district court properly vetted Agent Small through a Daubert hearing and at trial. The Tenth Circuit also found that, contrary to Vann’s assertions, Agent Small had considerable experience in the drug trade and had attested to numerous PCP arrests. The Tenth Circuit found no abuse of discretion.

Vann’s third claim was that the district court erred in not sua sponte addressing alleged prosecutorial misconduct during trial. After reviewing the record, the Tenth Circuit found that the prosecution’s comments were “simply lawyering,” or attempts to influence the jury’s verdicts by presenting evidence favorable to its case. Further, a limiting instruction provided by the district court and limiting remarks made by the prosecutor mitigated any error there might have been.

Vann’s final claim is that he did not knowingly waive his right to counsel at sentencing. The district court had conducted a waiver-of-counsel inquiry at the beginning of trial, and Vann elected to have representation at trial. When Vann discharged his attorney at the sentencing phase, the trial court questioned whether he was firing his attorney as a tactic to gain time, since he had fired two previous attorneys. The court allowed him to proceed pro se at the sentencing phase. Vann contends that he did not receive an adequate waiver-of-counsel inquiry prior to sentencing, but the Tenth Circuit found he was adequately informed of the risks of proceeding unrepresented due to the previous inquiry.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: DUI Is Not Lesser Included Offense of DUI Vehicular Homicide

The Colorado Court of Appeals issued its opinion in People v. Barry on Thursday, January 29, 2015.

Motor Vehicle Accident—Intoxication—Warrant—Blood—Hearsay—Cross-Examination—Vehicular Homicide—DUI—Merger.

Defendant was traveling the wrong direction on a divided highwaywhen her vehicle collided with another vehicle. The other driver, L.D., was killed on impact, and two other people, J.M. and M.B., were injured when defendant’s car spun and hit their vehicle. A test of defendant’s blood revealed a blood-alcohol content (BAC) of .219, well over the legal limit. Defendant was convicted of DUI vehicular homicide in the death of L.D., reckless vehicular homicide in L.D.’s death, DUI, driving with excessive alcohol content, and third-degree assault as to J.M.

On appeal, defendant contended that the trial court erred in denying her motion to suppress the BAC results because her blood was obtained without a warrant and the police lacked probable cause. At the time defendant’s blood was drawn, the police knew that defendant had been traveling the wrong direction on the highway and that she had consumed a drink before the accident. Further, defendant’s speech was slow and slurred, her eyes were red and watery, and her statements at the scene were inconsistent with the evidence. Therefore, the police had probable cause to obtain her blood by a forced blood draw. In addition, because alcohol dissipates quickly in the blood and two hours had already elapsed since the accident, exigent circumstances existed. Finally, the officers conducted the blood draw in objectively reasonable reliance on then-binding appellate court precedent. Consequently, the trial court did not err in denying defendant’s motion to suppress the BAC results.

Defendant asserted that the trial court violated her right to cross-examination under the Confrontation Clause when it admitted evidence that her blood was drawn in a medically acceptable manner without requiring the testimony of the EMT who drew her blood. Assuming that the EMT’s report was hearsay and it was error for the EMT not to testify, admission of the certification by the EMT that she drew the blood by venipuncture did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of defendant’s conviction. Therefore, any error was harmless.

Defendant contended that her conviction for reckless driving vehicular homicide must be vacated because it merges with DUI vehicular homicide. Because these charges are alternative ways of committing the single crime of vehicular homicide, the trial court erred in imposing two convictions. Defendant’s conviction for reckless vehicular homicide was vacated.

Defendant further contended that her DUI conviction must merge into her DUI vehicular homicide conviction because DUI constitutes a lesser included offense of DUI vehicular homicide and, thus, imposing both convictions violates double jeopardy principles. Many of the vehicles included under the criminal code’s definition of motor vehicle, such as airplanes or boats, are not included under the traffic code’s definition of motor vehicle because those vehicles are not designed for travel on and are not commonly used for transport over public highways. Thus, an inebriated individual who causes the death of another while operating a vehicle not listed in the DUI statute may be convicted of DUI vehicular homicide, but not convicted of DUI. Therefore, DUI is not a lesser included offense of DUI vehicular homicide and defendant’s argument for merger fails.

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

Tenth Circuit: Officers Had Ample Evidence of Defendant’s Presence When Executing Arrest Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Denson on Tuesday, December 30, 2014.

Steven Denson was convicted of armed robbery and served prison time. After being released from prison, though, he did not report to his probation officer as required. Eventually, authorities found his name on a residential Wichita utility account and secured an arrest warrant. Officers used a hand-held Doppler device and other evidence to determine that the residence had one occupant, and, when no one answered the door, forced their way into the residence, where they found Denson and a stash of guns. Denson pled guilty to possession of firearms but reserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. He sought reversal from the Tenth Circuit on three grounds. He contended (1) officers entered his home without reason to believe he was present, (2) officers lacked a lawful basis to search his home after arresting him, and (3) officers had no right to seize his guns.

The Tenth Circuit found that the officers had probable cause to infer that Denson was home before entering the residence. Denson had opened a residential utility account in his name on only the one residence; he hadn’t reported any recent earnings, leading officers to suspect he was unemployed; he was hiding from law enforcement, making it unlikely he was out and about; and the house’s electric meter was especially active, leading officers to infer someone in the house was using electricity. Although the Tenth Circuit found the Doppler evidence to verge on an unlawful intrusion into Denson’s privacy, they found ample other evidence  to infer that someone was home when officers executed the arrest warrant.

The Tenth Circuit next addressed Denson’s argument that the search was unlawful. The Tenth Circuit relied on well-settled law to find that the officers were allowed to conduct a “quick and limited search of the premises” in order to ensure their safety. Because the officers knew Denson was a fugitive, had a history of violent crime, was a gang member, and had violent associations, they had ample reason to conduct a cursory search of the residence.

Denson’s final argument was that the officers lacked probable cause to seize the weapons. However, Denson had a prior felony conviction, and he was not allowed to possess the firearms. Addressing his contention that the weapons belonged to his roommate, the Tenth Circuit found that the possession standard is met when a felon has knowledge of and access to the weapons in question. The guns in Denson’s house were not locked and were available in a closet to anyone who wished to enter the closet. The officers were well within their rights to seize the weapons.

The district court’s judgment was affirmed.

Tenth Circuit: Sex Offender Must Keep Registration Current Even When Residing in Non-SORNA Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nichols on Tuesday, December 30, 2014.

Lester Nichols is a convicted sex offender who moved from the United States to Manila, Philippines, without updating his information on the federal sex offender registry. He was arrested in the Philippines one month later and deported to the United States, where he was charged with and indicted for failure to update his registration information in violation of the Sex Offender Notification and Registration Act (SORNA). Mr. Nichols moved to dismiss the indictment, arguing that SORNA did not require him to register in a non-SORNA jurisdiction, and also contesting as unconstitutional SORNA’s delegation to the Attorney General to determine its application to sex offenders whose predicate offense occurred prior to SORNA’s enactment.

The district court relied on Tenth Circuit precedent in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011), and rejected Nichols’ first argument. The district court also rejected Nichols’ nondelegation argument, noting that despite the lack of binding Tenth Circuit precedent, dicta from the Tenth Circuit and precedent from other circuits has upheld SORNA’s delegation of authority. Nichols appealed on both points.

The Tenth Circuit first addressed the requirement for sex offenders to register in non-SORNA jurisdictions. In Murphy, the defendant was released from prison in Utah and moved to Belize. The Tenth Circuit analyzed SORNA’s registration requirements and decided that leaving Utah triggered the requirement for the offender to register, even though he moved to a non-SORNA jurisdiction. Nichols contended that the dissent in Murphy should guide the Tenth Circuit in his case, but the court could not overturn its prior precedent without an intervening Supreme Court decision or en banc consideration, and affirmed the district court’s determination on this issue.

Nichols next argued that Congress’s delegation of authority to the Attorney General to determine its preenactment application was unconstitutional, and the Tenth Circuit should apply a heightened “meaningful constraint” standard in evaluating the constitutionality. The Tenth Circuit first determined that Congress clearly delineated the general policy on which SORNA is based, and the policy conveyed to the Attorney General intelligible guiding principles. Congress also clearly delineated the boundaries of the Attorney General’s authority, and the Tenth Circuit found that the delegation satisfied the Supreme Court’s “intelligible principles” test. As to Nichols’ argument that the court should apply the more stringent “meaningful constraint” test, since the delegation contemplated criminal sanctions, the Tenth Circuit disagreed. The meaningful constraint test has only been referenced in a handful of cases, and no specific factors or substantive analytical framework has been developed, making application nearly impossible, whereas the intelligible principles test is well established.

The Tenth Circuit affirmed Nichols’ conviction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Tenth Circuit affirmed the judgment of the district court.

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

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

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

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

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

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