December 1, 2015

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.

Tenth Circuit: Restitution Must Be Based on Actual Losses Suffered by Victims

The Tenth Circuit Court of Appeals issued its opinion in United States v. Howard on Tuesday, April 28, 2015.

Roger Howard pleaded guilty to three counts of wire fraud and one count of money laundering arising in his participation in three mortgage fraud schemes. The district court sentenced Howard to 108 months’ imprisonment and ordered him to pay $8,862,191.18 in restitution. Howard appealed, arguing the district court improperly increased his offense level by miscomputing the loss to the mortgage lenders and awarded restitution without evidence of the victims’ actual losses.

The Tenth Circuit first addressed Howard’s offense level argument. Under the fraud sentencing guideline, the offense level is based on the amount of loss. The district court calculated the loss based on the unpaid portion of the loan and determined it to be $8,862,191.18, which required an offense level of 20 because it was between $7 and $20 million. Defendant disputed the loss calculations, arguing the government’s evidence was insufficient to support $709,588 in losses on eight loans, the court should have reduced the loss amount by $973,935 to account for interest payments, and the court should not have included $313,261 in losses to a downstream noteholder. However, Defendant failed to raise his loss arguments below, and the Tenth Circuit evaluated for plain error. Finding none, the Tenth Circuit affirmed the district court’s offense level calculation.

As to the restitution calculation, Defendant argued the court wrongly computed the total amount due on the loans rather than the harm suffered by individual victims in calculating loss. The Tenth Circuit noted that under the Mandatory Victims Restitution Act, restitution is intended to make victims whole and cannot unjustly enrich them. By calculating restitution based on the amount due on the loans rather than the amount of loss actually suffered by victims, the district court applied an incorrect methodology. The Tenth Circuit remanded for the district court to vacate its restitution award and redetermine restitution based on actual victim losses.

The judgment of the district court was affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: Mere Possession Not Enough to Support Distribution Charge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Washington on Wednesday, April 22, 2015.

Two men made a car trip to McAlester, Oklahoma, and were arrested after an anonymous tipster alerted the police that their car contained drugs. In a related appeal, the Tenth Circuit found no error in co-defendant Maurice Edwards’ conviction. However, the Tenth Circuit reversed Anthony Washington’s conviction, finding the evidence insufficient to support the charges.

Police recovered roughly 7.5 kilograms of marijuana and 28 to 29 grams of methamphetamine, most of which were in a black duffel bag labeled with Edwards’ name and containing a receipt with Edwards’ signature. Drugs were also found in a red Cold-Eze box, a black bag, and a container for Green Tea Extract. Although both men were in the car with the drugs, mere presence was not enough to form the basis for Washington’s conviction. The prosecution argued that because drugs and scales were in the car, the car smelled strongly of marijuana, aluminum foil was present near Washington’s notebook, and Washington was present when Edwards borrowed the car from his mother, these facts supported an inference that he knew of the drugs and the sale.

The Tenth Circuit analyzed the evidence, and found that although Edwards’ luggage contained fourteen bricks of marijuana, there were no drugs or other incriminating evidence in Washington’s luggage. Further, there was no evidence that Washington could have seen inside Edwards’ duffel or the Cold-Eze box or Green Tea Extract bottle. As to the two scales in the car, the Tenth Circuit found they were not easily visible—one was designed to look like a regular iPhone and the other was in a black box.

The Tenth Circuit next addressed the inference from the strong marijuana smell and the aluminum foil, finding both suggested consumption and not distribution. Washington could have known about the small, personal use quantities of drugs without having knowledge that there were enough drugs in the car to sell. Because he was convicted of possession with intent to distribute or aiding and abetting that offense, mere possession was not enough to support conviction.

The Tenth Circuit addressed what it characterized as misinterpretations of evidence and testimony, and again found they did not support the distribution charge. The district court’s judgment was reversed and remanded with instructions to dismiss the indictment.

Colorado Supreme Court: Aggravated Range Sentence Supported by Mandatory Sentencing Statute

The Colorado Supreme Court issued its opinion in Hunsaker, Jr. v. People on Monday, June 15, 2015.

Mandatory Sentencing—Crim.P. 35(a) and (b)—Prosecutorial Appeal—Colorado Sex Offender Lifetime Supervision Act.

Defendant appealed his sentence on his conviction for sexual assault on a child–pattern of abuse, a class 3 felony. The Supreme Court held that (1) when a conviction is for a sex offense that requires sentencing in accordance with the mandatory sentencing statute, the prosecution is not required to prove aggravating circumstances to support a bottom-end sentence in the aggravated range; (2) the prosecution here is authorized to appeal the post-conviction court’s ruling on the defendant’s Crim.P. 35(a) motion because it challenges the legal basis for the range the post-conviction court used to impose the sentence; (3) under Crim.P. 35(a), the illegality of a sentence on one count does not entitle a defendant to resentencing on other counts with legal sentences; and (4) if a sentence is subject to correction on one count, Crim.P. 35(b) authorizes a resentencing court to reconsider and reduce the legal sentences as to all counts after it has corrected the entire sentence. The Court therefore affirmed the court of appeals’ judgment reversing and remanding the case to the post-conviction court to reinstate defendant’s sentence of sixteen years to life on his conviction for sexual assault on a child–pattern of abuse. The Court held that, on remand to the post-conviction court, defendant may seek reconsideration of his sentence under Crim.P. 35(b).

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

Tenth Circuit: No Error in Admission of Anonymous 911 Call for Purpose of Explaining Investigation

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, March 24, 2015.

After an anonymous 911 call alerted McAlester, Oklahoma police about two men transporting drugs, Maurice Edwards and Tony Washington were arrested. Both were charged with aiding and abetting each other to possess controlled substances with intent to distribute. At trial, Edwards objected to admitting the phone call into evidence, but the trial court ruled that the call was admitted for the limited purpose of explaining why an investigation was undertaken and therefore was not hearsay. The jury found defendant guilty beyond a reasonable doubt of either possession with intent to distribute or aiding and abetting possession with intent of marijuana and 5 grams or more of methamphetamine.

Edwards raised three arguments on appeal: (1) the phone call was testimonial hearsay and its admission violated the Confrontation Clause; (2) his indictment charged him only as an aider and abettor, not a principal, so the trial evidence and jury instructions constructively amended his indictment; and (3) in order for him to have been convicted as an aider and abetter, the jury was required to find beyond a reasonable doubt that someone else was the principal.

The Tenth Circuit first addressed the anonymous 911 call. Even assuming the call was inadmissible hearsay, the Tenth Circuit found any error was harmless because other evidence of Edwards’ guilt was overwhelming, the trial court issued a limiting instruction, and the Tenth Circuit found Edwards’ proffered defense “utterly implausible.”

Next, the Tenth Circuit evaluated Edwards’ constructive amendment argument for plain error since it was not properly preserved below. The Tenth Circuit found that Edwards’ argument failed at the first prong of the plain error test because there was no error. His indictment was sufficient to charge him both as a principal and an aider and abettor. The Tenth Circuit noted the indictment allowed Edwards to assert a double jeopardy defense.

The Tenth Circuit next evaluated Edwards’ argument that the aiding and abetting instruction omitted the essential element that someone else committed the crime. Again, the Tenth Circuit’s review was for plain error because the argument was not preserved below. The Tenth Circuit first noted there was no requirement for the district court to follow pattern jury instructions, and found that if there was any error in the proffered instructions, it was not plain.

The Tenth Circuit affirmed Edwards’ conviction.

Colorado Court of Appeals: Rational Basis Supported Tendered Lesser Non-Included Offense Instruction

The Colorado Court of Appeals issued its opinion in People v. Naranjo on Thursday, May 7, 2015.

Felony Menacing—Lesser Non-Included Offense—Disorderly Conduct.

Defendant Naranjo was convicted of two counts of felony menacing. The victims, a father and daughter, testified at trial that as the father was merging onto the highway, Naranjo cut them off, pointed a gun at the daughter, and threatened both of them. Naranjo testified that the father was the aggressor, that he inadvertently showed his gun as he was putting it away in the glove box, and that he did not make any threats.

On appeal, Naranjo contended that the trial court reversibly erred in declining to instruct the jury on the lesser non-included offense of disorderly conduct with a deadly weapon. Although Naranjo’s asserted reason for grabbing the gun was, as the trial court put it, “perfectly benign,” a jury could nonetheless conclude that handling a weapon while traveling on a public highway supported a finding that Naranjo consciously disregarded a substantial and unjustifiable risk that the gun would be displayed to someone outside the car. Thus, the record supports a rational basis from which the jury could have convicted Naranjo of disorderly conduct with a deadly weapon and acquitted him of felony menacing. The trial court therefore erred in declining to give the lesser non-included offense instruction to the jury. Because this error was not harmless, the judgment was reversed and the case was remanded for a new trial.

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

Tenth Circuit: Defendant’s Safety Valve Proffer Not Untimely at Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Figueroa-Labrada on Tuesday, March 24, 2015.

Jesus Figueroa-Labrada (Figueroa) was convicted by a jury of conspiring to distribute methamphetamine, and the district court attributed the entire amount of meth involved in the conspiracy to Figueroa. On direct appeal, the Tenth Circuit remanded for the district court to determine what amount should be attributed to Figueroa, and the district court changed the amount to a quantity carrying a five year mandatory minimum sentence. Before his resentencing hearing, Figueroa argued that he qualified for a “safety valve” sentence reduction under 18 U.S.C. § 3553(f). The government supported his request, but the district court decided that the language of § 3553(f)(5) precluded Figueroa’s use of the safety valve, since he had not been truthful before the original sentencing hearing.

As a matter of first impression, the Tenth Circuit determined that the plain language of § 3553(f) required the district court to consider the defendant’s proffered safety valve information if it was offered before resentencing. In this case, the district court held that because Figueroa had not provided the safety valve information before the initial sentencing hearing, he was not entitled to its use. The Tenth Circuit found the statutory language did not necessitate that the safety valve be invoked before the initial sentencing hearing, but rather before the sentencing hearing at issue.

The Tenth Circuit found that the district court’s error was not harmless and remanded. Judge Phillips dissented, finding instead that the district court considered and rejected Figueroa’s safety valve disclosures as untimely and there was no error.