May 29, 2016

Colorado Court of Appeals: Entry Into Motor Vehicle Contemplated by Motor Vehicle Theft Statute

The Colorado Court of Appeals issued its opinion in People v. Wentling on Thursday, December 3, 2015.

First-Degree Criminal Trespass—Evidence—Motor Vehicle Theft—CRS § 18-1-303(1)—Equal Protection—Presentence Confinement Credit.

Wentling was arrested in Utah after he was found asleep in a vehicle that had been reported as stolen in Colorado. Wentling was charged with multiple offenses in Colorado, including first-degree criminal trespass with intent to commit motor vehicle theft.

On appeal, Wentling contended that there was insufficient evidence to convict him of first-degree criminal trespass with intent to commit motor vehicle theft. However, the motor vehicle theft statute does not preclude prosecution under a general criminal statute, and the People had discretion to prosecute under either. Here, there was sufficient evidence that Wentling entered the motor vehicle with the intent to commit motor vehicle theft inside the vehicle, which was sufficient to prove first-degree criminal trespass with intent to commit motor vehicle theft.

In the alternative, Wentling contended that he was improperly prosecuted in Colorado in violation of CRS § 18-1-303 because he was previously convicted in Utah for the same conduct. Wentling’s prosecution under the Colorado statute was not barred by CRS § 18-1-303(1) because the law defining each offense was intended to prevent a substantially different harm or evil.

Wentling also contended that when the People charged him with first-degree criminal trespass with intent to commit motor vehicle theft rather than attempted motor vehicle theft, it violated his right to equal protection under the law because it subjected him to more severe punishment. Attempted motor vehicle theft and criminal trespass have different elements and, thus, it is permissible for the legislature to prescribe different penalties for similar conduct. Therefore, the trial court did not violate Wentling’s right to equal protection.

Wentling further contended that the trial court erred when it denied his request for 89 additional days of presentence confinement credit (PSCC). Wentling was entitled to PSCC from October 11, 2011, when he arrived in Moffat County Jail, until February 7, 2012, when he finished his Utah sentence, because this period of time resulted from the charges brought by the State of Colorado. The case was remanded to amend the mittimus to include the correct additional PSCC days.

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

Tenth Circuit: Special Conditions of Release that Affect Employment Require Specific Findings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rodebaugh on Tuesday, August 25, 2015.

Dennis Rodebaugh operated a hunting business in Colorado, where he would take mostly out-of-state clients on elk and deer hunting trips through the White River National Forest. Rodebaugh’s business had a high success rate for shooting animals, but at some point officials were tipped off that Rodebaugh was illegally baiting the animals by spreading salt below his deer stands. After a lengthy investigation, he was interviewed by authorities, to whom he eventually confessed that he was baiting the animals and knew it was illegal.

He was indicted on several counts of Lacey Act violations, which Act prohibits selling wildlife taken in violation of state law. Rodebaugh moved to suppress his confession, arguing it was involuntary, but the district court ultimately denied his motion. Rodebaugh also moved to dismiss the indictment, arguing the Colorado regulations against baiting were unconstitutionally vague. The district court denied his motion to dismiss without prejudice but granted leave for Rodebaugh to raise the vagueness issue at trial. During the multi-day trial, Rodebaugh again raised his vagueness argument, but he was ultimately convicted of six Lacey Act violations. The district court applied three sentencing enhancements to arrive at a Guidelines range of 41-51 months. It sentenced him to 41 months imprisonment followed by three years’ supervised release, during which time he could not engage in or accompany others in any hunting or fishing activities. Rodebaugh appealed.

The Tenth Circuit first addressed Rodebaugh’s contention that the district court erred in denying his motion to suppress, arguing that his confession was involuntary and that the district court erred by making him present first at the suppression hearing. The Tenth Circuit examined the circumstances under which Rodebaugh’s confession was obtained and found it fully voluntary. Rodebaugh contended that because he had only slept three hours in the past two days, he should have been allowed to take a nap before talking to the agents, but the Tenth Circuit disagreed, finding record support that it was customary for Rodebaugh to receive little sleep and that he was coherent throughout the interview. The Tenth Circuit also evaluated the circumstances of the interview, including that it lasted only three hours, it was outdoors, and Rodebaugh was free to leave, and found that the circumstances did not support an inference of involuntariness. Next, Rodebaugh urged that his confession was involuntary because an agent told him that if he did not confess they would take his house and all his property away from him. The Tenth Circuit found this statement troubling, but not enough so to render the confession involuntary. The Tenth Circuit affirmed the district court’s denial of Rodebaugh’s motion to suppress. The Tenth Circuit also rejected Rodebaugh’s argument that the district court erred by making him present first at the suppression hearing, finding it well within the district court’s discretion to determine how best to run the courtroom.

The Tenth Circuit next evaluated and rejected Rodebaugh’s argument that the Colorado law prohibiting baiting was unconstitutionally vague, finding no support for either Rodebaugh’s facial or as-applied challenges. The Tenth Circuit also rejected Rodebaugh’s sufficiency of the evidence challenges, finding that Rodebaugh’s confession, specific testimony from an undercover agent and others, and evidence that he had salt in his home supported his convictions. Rodebaugh also challenged the procedural reasonableness of his sentence, but the Tenth Circuit found support for each of the enhancers applied by the district court.

The Tenth Circuit then turned from the majority opinion to Judge Matheson’s dissent regarding Rodebaugh’s appeal of the special condition of supervised release that prohibited him from any hunting or fishing activities. Judge Matheson noted that the district court failed to make any specific findings about imposing a restriction on Rodebaugh’s employment, which it was required to do. Judge Matheson’s dissent was well-reasoned, noting that although Rodebaugh failed to raise the argument in district court, the government failed to object when Rodebaugh raised it again, and therefore there was no prejudice in addressing the argument. Judge Matheson would have remanded to the district court for further findings on the issue of whether the employment restrictions were warranted. However, the majority opinion resumed, and the majority declined to apply the waiver-of-the-waiver argument championed by Judge Matheson. The majority decided that because Rodebaugh’s main argument against the hunting and fishing prohibition is that it deprived him pleasure, there was no need to discuss employment restrictions, and therefore the district court’s order was affirmed.

The Tenth Circuit affirmed the district court on all counts. Judge Matheson wrote a thoughtful dissent regarding the employment restrictions imposed by the district court.

Colorado Supreme Court: Complicitor Liability Not Limited to Crimes Containing Culpable Mental State

The Colorado Supreme Court issued its opinion in People v. Childress on Monday, November 23, 2015.

Complicity—Mental State Requirement of Complicitor Liability—Applicability of Complicitor Liability to Strict Liability Offenses.

The People petitioned for review of the court of appeals’ judgment vacating defendant’s conviction of vehicular assault while operating a motor vehicle under the influence of alcohol or drugs. Although it was undisputed that defendant was not driving the vehicle in question, the jury was instructed that he could be found guilty as a complicitor. The court of appeals concluded that because vehicular assault while under the influence is designated a strict liability offense, it requires no culpable mental state on the part of the driver. It further found that the Supreme Court had previously held complicitor liability inapplicable to crimes lacking a culpable mental state requirement.

The Supreme Court reversed the judgment of the court of appeals. The Court reconsidered and clarified the reach and requirements of complicitor liability in this jurisdiction and determined that, as clarified, complicitor liability can extend to strict liability offenses. It remanded the matter to the court of appeals with directions to address any other of defendant’s assignments of error possibly impacting his conviction of vehicular assault.

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

Colorado Court of Appeals: Trial Court Lacks Discretion to Vary Downward from Mandatory Minimum Sentence

The Colorado Court of Appeals issued its opinion in People v. Rice on Thursday, November 19, 2015.

Distribution of Controlled Substance—Possession With Intent to Distribute—Conspiracy to Distribute—Presumptive Sentencing Range—Mitigating Circumstances.

Rice was charged with distribution of a controlled substance, possession with intent to distribute, and conspiracy to distribute based on Rice’s selling cocaine and discovery of nearly 5 ounces of cocaine hidden in Rice’s car pursuant to arrest and search warrants. Rice pleaded guilty to distribution of a schedule II controlled substance pursuant to CRS § 18-18-405(1), (2)(a)(I), and (3)(a)(I).

On appeal, Rice contended that the sentencing court incorrectly interpreted CRS § 18-18-405(3)(a)(I) to preclude a sentence of less than four years based on extraordinary mitigating circumstances pursuant to CRS § 18-1.3-401(6). CRS 18-1.3-401(1)(a)(V)(A) mandates that the presumptive sentencing range for a class 3 felony is four to twelve years in the Department of Corrections (DOC) with a mandatory five-year period of parole. CRS 18-18-405(3)(a) is a sentencing enhancement statute that requires a mandatory minimum sentence, which in this case was 4 to 16 years in the custody of the DOC. Accordingly, the trial court did not have discretion to impose a sentence below the minimum sentence under CRS § 18-1.3-401(6). Rice’s sentence was affirmed.

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

Colorado Court of Appeals: Judge’s Ex Parte Communications Violated Defendant’s Constitutional Rights

The Colorado Court of Appeals issued its opinion in People v. Guzman-Rincon on Thursday, November 19, 2015.

Sixth Amendment—Fourteenth Amendment—Jury—Ex Parte Communications.

The victim and her friends were standing across the street from Aurora Central High School when a vehicle drove by, made a U-turn, and drove back toward the group. A passenger from the vehicle then fired a single shot from the car. The bullet struck the victim in the spine, paralyzing her. A jury found him guilty of six counts of attempted extreme indifference murder (crime of violence).

During trial, the prosecutors requested ex parte communications with the judge to inform him that the investigating officer on the case had been contacted by a confidential informant, who warned the prosecutors that defendant or defense counsel had leaked information about witness interviews to defendant’s family and that gang members viewed the interviews. The court determined there were credible threats against the witnesses, investigating officer, prosecutor, and jurors. The court sequestered the jury based on this information; however, the court did not inform defendant’s counsel or the jury that the sequestration was based on a credible threat. During deliberations, the jury questioned the court about their safety, and the court informed the jury of the threat outside the presence of defendant.

On appeal, defendant contended that the court’s ex parte communications with the prosecutors and the jurors violated his Sixth Amendment right to counsel and Fourteenth Amendment right to be present at all critical stages of his trial. Because a defendant is entitled to counsel and to be present at every critical stage of the proceedings, and the court’s discussions with the prosecutors and the jurors constituted critical stages, defendant’s Sixth Amendment right to counsel and his Fourteenth Amendment right to be present were violated. Because the court could not conclude that these errors were harmless beyond a reasonable doubt, reversal was required.

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

Colorado Court of Appeals: Evidence From One Trial Would Have Been Admissible at Other so Joinder Proper

The Colorado Court of Appeals issued its opinion in People v. Bondsteel on Thursday, November 19, 2015.

Joinder—Crim.P. 13—CRE 404(b)—Pretrial Lineups—Unduly Suggestive—Challenge for Cause—Jury—Kidnapping—Evidence—Prosecutorial Misconduct.

The trial court joined two separate cases against Bondsteel for trial: (1) the Signal Mountain Trail case in which Bondsteel had attacked two women while they were hiking; and (2) the motorcycle case in which Bondsteel approached four women in three separate cars while on his motorcycle, taking their cell phones and other belongings and demanding that the women move or remove portions of their clothing. A jury convicted him of multiple offenses, including second-degree kidnapping, aggravated robbery, unlawful sexual contact, and attempted sexual assault.

On appeal, Bondsteel first contended that the trial court erred in allowing the prosecution to join the two cases for trial. However, Bondsteel failed to satisfy either prong of the misjoinder test. Therefore, the trial court did not abuse its discretion in joining the cases.

Bondsteel next contended that because the pretrial lineups in which N.D. and K.D. both identified him as their attacker were unduly suggestive, their identifications should have been suppressed. All six lineup participants were dressed in camouflage with head coverings, leaving only their eyes visible, just as the victims had described their attacker to sheriff’s office deputies. Four of the participants had blue eyes; Bondsteel and one other participant had brown eyes. The disparity in the participants’ eye colors did not render the lineups impermissibly suggestive. Therefore, the trial court did not err in denying his motion to suppress.

Bondsteel contended that the trial court wrongfully denied his for-cause challenge to juror J.H., whom he eventually excused with a peremptory challenge. Even if the trial court abused its discretion in denying the challenge for cause, Bondsteel was not entitled to relief because he failed to show that a biased or incompetent juror sat on the jury instead of J.H.

Bondsteel further contended that the trial court committed reversible plain error by failing to instruct the jury sua sponteon the limited purposes for which it could consider evidence of the motorcycle case in relation to the Signal Mountain Trail case. However, Bondsteel failed to raise this issue, and a trial court’s failure to give a limiting instruction sua spontein the CRE 404(b) context was not reversible plain error.

Bondsteel argued that the evidence was insufficient to convict him for second-degree kidnapping of N.D. and K.D.; alternatively, he contended that the jury instructions on these counts were deficient. Although Bondsteel only moved N.D. a short distance, it substantially increased the risk of harm to N.D. by moving her off the public path. In contrast, there was no evidence in the record that Bondsteel moved K.D. at all. Because the evidence on the second-degree kidnapping conviction of K.D. was insufficient, this conviction was reversed and the accompanying sentence was vacated.

Finally, Bondsteel argued that the judgments must be reversed because the prosecutors misrepresented the nature of DNA evidence during closing argument. Bondsteel’s counsel did not object to the arguments at trial, and there was either support in the record for the prosecutor’s arguments or there was a lack of evidence in the record that defense counsel’s failure to object was tactical instead of inadvertent. Therefore, reversal was not required.

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

Tenth Circuit: Lesser Included Offense Must Have Nearly Identical Elements as Charged Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barrett on Wednesday, August 19, 2015.

Kenneth Barrett had outstanding warrants for failure to appear at a state court trial for drug charges, and in 1999 an Oklahoma drug task force learned Barrett was manufacturing and selling methamphetamine out of his home. Officers obtained a warrant and devised a plan to execute it at night. Barrett opened fire on the officers as they attempted to execute the warrant, killing one officer. Barrett was charged in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. His first state trial resulted in a hung jury, and in 2004 he was retried and found guilty of two lesser included offenses—manslaughter instead of first-degree murder and assault with a dangerous weapon instead of shooting with intent to kill. He was sentenced to 30 years in prison.

In September 2004, Barrett was charged with various federal drug and murder offenses in the U.S. District Court for the Eastern District of Oklahoma: (1) causing Officer Eales’ death in the course of using a firearm in the furtherance of a drug-trafficking offense, (2) causing Eales’ death in the course of using a firearm in the furtherance of a crime of violence, and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in his official duties. A jury convicted him of all three counts. He was sentenced to life in prison on the first two counts and death on the third count. On direct appeal, the Tenth Circuit affirmed the convictions and sentence. Barrett then sought relief under 28 U.S.C. § 2255, but the district court denied a COA. The Tenth Circuit granted a COA on seven issues related to ineffective assistance of counsel.

The Tenth Circuit addressed Defendant’s arguments in turn. It found no error with defense counsel’s decisions to utilize the same police tactics expert that was used in the state court, since the strategy worked in state court. The Tenth Circuit noted that the decision of which expert to call is quintessentially a matter of strategy for the trial attorney and it would hesitate to question any of defense counsel’s decisions. Defendant also argued his trial counsel erred by failing to counter the government’s crime scene reconstruction expert, and the Tenth Circuit again disagreed, finding the expert’s testimony was full of problems for the prosecution and defense counsel was well within reason to use the same strategy they used in the state trial. Defendant also argued his counsel was ineffective for failing to present mental health evidence during the guilt phase, but the Tenth Circuit determined Defendant failed to show prejudice.

Next, Defendant argued the jury instructions insufficiently advised the jury on lesser included offenses. The Tenth Circuit evaluated Defendant’s proffered lesser included offense instructions and found them inapposite because they were not lesser included offenses of the charged offenses. The Tenth Circuit noted that, to be a lesser included offense, it must contain the same elements as the charged offense except for the thing that makes the greater offense greater. Because the elements of the proposed lesser included offenses were not the same as the charged offenses, Defendant’s argument failed. Defendant’s arguments that his counsel should have requested instructions on victim identity and drug manufacturing similarly failed.

The Tenth Circuit last addressed Defendant’s argument that his counsel was ineffective for failing to explore evidence of his mental health issues during the penalty phase. The Tenth Circuit examined the record and found that defense counsel had not explored potential mitigating evidence of Defendant’s mental health issues at all. The Tenth Circuit reversed the death sentence and remanded for resentencing.

The Tenth Circuit reversed and remanded the death sentence and affirmed in all other respects.

Tenth Circuit: High AEDPA Burden Precludes Reversal Where Error Not Clearly Shown

The Tenth Circuit Court of Appeals issued its opinion in Hancock v. Trammell on Tuesday, August 18, 2015.

Phillip Hancock’s ex-girlfriend was staying with Bob Jett when Hancock was asked to come pick her up. When he arrived at Jett’s house, the girlfriend was not there but Jett and another man, James Lynch, were. Later, Ms. Shawn Tarp arrived at the house and the four did meth together. An altercation ensued, and Jett, who was armed, tried to force Hancock into a large cage with Lynch’s help. Jett was swinging a metal bar at Hancock, and it may have hit his head. At some point during the scuffle, Hancock got the gun from Jett and shot both Jett and Lynch. Lynch collapsed and Hancock chased Jett out the back door, then shot him again. Tarp was hiding in a back room, and after the shots subsided she emerged, but Hancock did not shoot her. He calmly apologized to her for what she witnessed and asked her to wait a few minutes before leaving, which she did.

Hancock was charged with two counts of first-degree murder. He admitted that he shot the men, but asserted he did so in self-defense. The jury rejected his defense and found him guilty on both counts of murder. He was sentenced to death. He was unsuccessful in his direct appeal to the Oklahoma Court of Criminal Appeals (OCCA) and in post-conviction proceedings. He applied for a writ of habeas corpus from the federal district court, which denied his request, and he appealed to the Tenth Circuit. Four issues were certified for review: (1) whether the state court denied him due process by allowing the prosecution to elicit testimony about his prior conviction for manslaughter in which he asserted self-defense, (2) whether the state court misled the jury by giving unwarranted instructions on self-defense and allowing the prosecutor to make improper comments in closing, (3) whether Hancock’s trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of manslaughter, and (4) cumulative error.

The Tenth Circuit first addressed the issue of the 1982 manslaughter conviction. Hancock urged a right to habeas relief because the OCCA did not adjudicate the merits of his due process claim and it based its decision on an unreasonable factual determination. The Tenth Circuit held that Hancock failed to raise his due process claim in district court and therefore forfeited the argument. The Tenth Circuit noted, however, that even if the OCCA did not specifically mention Hancock’s due process claim, it unquestionably reviewed his claim on the merits. The Tenth Circuit continued that Hancock’s argument was invalid because the OCCA concluded Hancock waived his argument by eliciting evidence of the manslaughter conviction on direct examination.

Hancock also argued the OCCA mistakenly thought the state court had allowed the manslaughter evidence as impeachment evidence under Okla. Stat. tit. 12, § 2609(B), which governs impeachment with convictions over 10 years old. The Tenth Circuit noted “If the OCCA had misunderstood the basis for the district court’s ruling, as Mr. Hancock argues, the mistake would likely have constituted an unreasonable determination of fact and allowed us to consider the merits of the underlying constitutional claim,” but determined that Hancock had not met the heavy AEDPA burden of showing a factual misunderstanding. Hancock argued the state did not allow the evidence under § 2609(B); rather, he argued it either admitted the evidence as “other act” evidence under Okla. Stat. tit. 12, § 2404(B), or as a form of relevant evidence. The Tenth Circuit noted that although the state court did not rely on § 2609(B), the OCCA clearly did, but it did not say whether it thought the state court had relied on § 2609(B) also. The Tenth Circuit remarked that it could reach the merits of the constitutional claim only if the OCCA rested its decision on a mistaken factual view of the record. The majority wrestled with the OCCA opinion and decided that although it was not clear on which section the OCCA based its opinion, Hancock failed to meet his high burden to show that the OCCA’s view was mistaken. The dissent, penned by Judge Lucero, strongly disagreed with the majority’s conclusion, finding that the OCCA’s opinion was incorrect and its error substantially influenced Hancock’s due process rights. Judge Lucero would have reversed and remanded on this point.

The Tenth Circuit turned its attention to Hancock’s argument that the state court erred by limiting the self-defense instruction and allowing the prosecutor to make improper closing remarks based on the limited instruction. At trial, the court instructed the jury on self-defense and the “aggressor” exception. Hancock argued there was no evidentiary basis for three parts of the instructions: (1) self-defense is not available for a person who voluntarily enters into combat, (2) a person can regain the right to self-defense if he withdraws from the confrontation, and (3) the use of words alone cannot turn someone into an aggressor. The Tenth Circuit found no error. The Tenth Circuit reviewed Hancock’s claim that the evidence was insufficient to justify these portions of the instructions and disagreed, finding the evidence showed that there was mutual combat between Jett and Hancock, at some point Jett turned away from Hancock and he chased after Jett to shoot him again, and Jett was provoking Hancock with his words. The Tenth Circuit similarly rejected Hancock’s argument that the prosecutor’s closing remarks about Jett running away were improper, finding Hancock forfeited this argument by failing to raise it in his habeas petition.

Next, the Tenth Circuit turned to Hancock’s argument that his trial counsel was ineffective because he failed to request an instruction on criminal attempt manslaughter. Because the trial counsel had requested and received a heat of passion manslaughter instruction, the Tenth Circuit found it was a reasonable trial strategy for counsel to have chosen the heat of passion instruction over the criminal attempt instruction, which was less applicable to the facts of Hancock’s case. The Tenth Circuit disagreed with Hancock that his counsel’s decision constituted deficiency.

Finally, the Tenth Circuit found no cumulative error. The Tenth Circuit found no constitutional violations and lack of prejudice on Hancock’s ineffective assistance claims. Hancock also requested to expand his certificate of appealability, but the Tenth Circuit denied his motion, finding that no reasonable jurist could find the district court’s conclusions wrong.

The Tenth Circuit affirmed Hancock’s convictions and sentence. Judge Lucero wrote a thoughtful and provocative dissent.

Tenth Circuit: Counsel’s Trial Strategy Sound and Performance Not Deficient so No Prejudice to Defendant

The Tenth Circuit Court of Appeals issued its opinion in Hanson v. Sherrod on Thursday, August 13, 2015.

John Hanson and Victor Miller went on a crime spree in Tulsa, Oklahoma in August and September 1999. Hanson and Miller carjacked Mary Bowles’ car with her inside. They drove to an isolated area near a dirt pit, where they intended to drop off Bowles, but encountered the owner of the pit, Thurman, who Miller shot and killed. The two then drove a short distance away and Miller told Hanson, “You know what you need to do.” Hanson then shot and killed Bowles; her badly decomposed body was found several weeks later. The two drove to a motel where they wiped down the inside of Bowles’ car and abandoned it. In the next several days, they robbed a video store and a credit union. After the credit union robbery, Miller’s wife (who had been the getaway driver) called Crime Stoppers and told police about the credit union robbery and Bowles’ abandoned car. She also told police where the pair were staying. Police found Bowles’ car and lifted fingerprints from both Miller and Hanson from the interior of the car. They surrounded the motel where Miller and Hanson were staying. Miller surrendered right away, but Hanson refused to leave the room. Eventually, police deployed tear gas and forced Hanson out of the room. They found two weapons with live ammunition in the room, which were the same type of weapons used in the shootings and robberies. Miller and Hanson were charged jointly with first-degree murder of Thurman and first-degree murder of Bowles. Alternatively, they were charged with felony murder for the two killings. At Miller’s request, their trials were severed.

Attorneys Jack Gordon and Eric Stall represented Hanson. Crucial evidence came from Rashad Barnes, a former coworker of Hanson’s who had been letting Hanson live in his car. Barnes testified that Hanson showed up at Barnes’ backyard acting nervous and jittery and told him several details of the killings and robberies. Hanson was convicted of first-degree murder of Bowles (Count 1) and felony murder of Thurman (Count 2). At sentencing, the jury found three aggravating circumstances: (1) Hanson’s prior felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he posed a continuing threat to society. He was sentenced to death for Count 1 and life imprisonment for Count 2. He appealed. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions but remanded for resentencing due to errors at the penalty phase. Days before the resentencing hearing began, Hanson learned that a fellow inmate of Miller’s, Ahmod Henry, would testify that Miller confessed to Bowles’ murder. Hanson filed an application for post-conviction relief based on that testimony, which he characterized as new exculpatory evidence. The state district court granted his motion for a new trial but the OCCA reversed, concluding the district court lacked jurisdiction.

Hanson’s resentencing hearing was held in January 2006, and he was again represented by Gordon. By the time the resentencing trial was held, Barnes had been killed in an unrelated incident. Barnes’ testimony from the first trial was read into the record over Hanson’s objections. In addition to testimony from Hanson’s family, a psychologist testified that she considered Hanson a low risk to society. At the end of the resentencing hearing, the jury recommended a death sentence based on three aggravating circumstances: (1) Hanson’s earlier violent felony conviction; (2) he knowingly created a great risk of death for more than one person; and (3) he had committed murder to avoid lawful arrest or prosecution. Hanson again appealed, and the OCCA invalidated the second aggravating circumstance. After reweighing the evidence, the OCCA affirmed the death sentence. The U.S. Supreme Court denied certiorari.

In 2008, Hanson filed an application for post-conviction relief, which the OCCA denied. He filed a second application in 2010, which was also denied. In December 2010, he filed a federal habeas petition in the U.S. District Court for the Northern District of Oklahoma, citing nine points of error. The district court denied his habeas petition but granted a COA on six of his claims. Hanson appealed to the Tenth Circuit, which granted him a COA for the remaining three points of error in addition to the six accepted by the district court.

Hanson asserted several instances of ineffective assistance of trial and appellate counsel. He argued his trial counsel was ineffective for (1) failing to call Henry as a witness, (2) failing to raise additional grounds for the admission of Barnes’ prior trial testimony, (3) failing to investigate and introduce mitigating evidence at sentencing, (4) failing to object to prosecutorial misconduct. He argued his appellate counsel was ineffective for failing to challenge his trial counsel’s ineffectiveness and failing to put forth evidence of mental illness and brain damage. Finally, he argued both trial and appellate counsel were ineffective for failing to argue that the aggravating circumstance of avoiding arrest failed to specify which crime Hanson sought to avoid prosecution of by murdering Bowles. The Tenth Circuit analyzed each claim in turn.

The Tenth Circuit first evaluated Henry’s possible testimony. At trial, Gordon chose not to examine Henry directly; rather, he introduced the evidence through the detective to whom Henry made the statement. Gordon’s strategy allowed the confession to be presented to the jury without the opportunity for the prosecution to cross-examine Henry, who had serious credibility issues. The Tenth Circuit found no ineffective assistance, noting instead that Gordon’s decision not to call Henry was sound trial strategy. Because Gordon’s performance was not deficient, there was no prejudice.

Next, the Tenth Circuit turned to Hanson’s claim that Gordon’s performance was deficient in regards to the introduction of Barnes’ prior testimony. Gordon argued vigorously that Henry’s statement should prevent the admission of Barnes’ testimony, but he did not argue separately that Miller’s trial testimony was another grounds for objection. Gordon admitted that he never read the transcript of Miller’s trial. The OCCA concluded Gordon’s failure to admit evidence from Miller’s trial appeared strategically sound, since there were good reasons to shield the jury from Miller’s testimony, including that Miller had inculpated Hanson and that Miller’s testimony refuting Barnes was contradicted by objective facts, such as the fingerprints in Bowles’ car and the firearms found at the pair’s arrest. The Tenth Circuit acknowledged that Gordon admitted his failure to read Miller’s transcript. However, it could not find that the error constituted deficiency. The Tenth Circuit noted that even if the performance were deficient Hanson suffered no prejudice, because any potentially useful scraps of evidence were contradicted by the “inconvenient truth” that the two were found committing other crimes with the same firearms used to murder Thurman and Bowles.

Hanson also argued Gordon’s performance was deficient because he failed to call several familial witnesses to rebut the continuing threat aggravator. Gordon called one expert witness and four lay witnesses to rebut the continuing threat aggravator, all of whom testified that Hanson was kind, loving, hard-working, and a good father. Hanson argued that 13 other lay witnesses would have humanized him in the eyes of the jury. The OCCA analyzed the potential testimony and concluded it was duplicative and only of marginal value. The Tenth Circuit agreed, noting it would be troubled if Gordon had not actually interviewed any of the 13 proffered witnesses but the additional evidence would not have impacted the jury’s ultimate decision.

Turning to Hanson’s argument that both trial and appellate counsel were deficient for failing to introduce evidence of his mental illness and brain damage, the Tenth Circuit found no error. Hanson was evaluated by several mental health professionals prior to trial, who performed various tests. He was again evaluated prior to sentencing. On direct appeal of the death sentence, Hanson’s new counsel attempted to retain a neuropsychologist but was advised against it by one of the psychologists who had previously evaluated him. For his federal habeas petition, Hanson’s counsel, who was different from the previous appellate counsel, obtained evaluations from a psychiatrist and neuropsychiatrist. The OCCA found no ineffective assistance in failure to introduce this evidence previously, specifically stating, “We cannot accept as credible Hanson’s assertion that the experienced capital litigation experts and attorneys all missed these obvious indicators of mental illness and cognitive dysfunction in this case at every step.” The OCCA found the issue was reviewed and rejected by both trial and appellate counsel. The Tenth Circuit affirmed, agreeing with the OCCA that it was implausible that the other mental health professionals would have missed this issue.

Hanson argued that Gordon’s performance was deficient for failure to object to prosecutorial misconduct. The Tenth Circuit evaluated each instance and found that no prosecutorial misconduct occurred, so there was no deficiency in Gordon’s failure to object. Finally, the Tenth Circuit rejected Hanson’s claim that the government was required to specify which predicate felony it used as basis for the the avoiding arrest aggravator. The Tenth Circuit noted there was no requirement that the government specify an underlying felony, but even if the requirement existed there was evidence that the prosecution based the aggravator on Thurman’s murder. Regardless, the OCCA struck the third aggravator on review, which was the appropriate remedy. Hanson also argued that the cumulative errors rendered his counsel ineffective, but the Tenth Circuit disagreed.

The Tenth Circuit affirmed the district court and denied Hanson’s motion to expand his COA.

Tenth Circuit: Indictment Still Effective Until End of Probationary Period During Conditional Discharge

The Tenth Circuit Court of Appeals issued its opinion in United States v. Saiz on Tuesday, August 18, 2015.

Gabriel Saiz pleaded guilty to burglary, battery, and larceny in New Mexico state court in 2011. At sentencing the court entered a conditional discharge order, under which Saiz was placed on probation but not convicted of the crimes. Upon completion of the probationary period the guilty plea would be eradicated and there would be no conviction. During the probationary period, Saiz was convicted on two federal charges of unlawful firearm possession. He pleaded guilty. The district court applied a sentence enhancement due to Saiz’s status as a “prohibited person,” meaning “any person under indictment for a crime punishable by imprisonment for a term exceeding one year.” The district court added two sentence enhancements and one reduction for acceptance of responsibility, resulting in a Guidelines range of 70 to 87 months’ imprisonment. Without the enhancements, the Guidelines range would have been 57 to 71 months. The district court varied downward and sentenced Saiz to 60 months’ imprisonment.

Saiz appealed, arguing the conditional discharge did not count as an indictment for purposes of the sentence enhancement. The Tenth Circuit disagreed, reasoning that because the charges in the indictment remain suspended during the period of probation, and because the court retains jurisdiction during the pendency of the probation, the indictment is still in effect during the probationary period. Persons under conditional discharge are neither adjudicated guilty nor convicted, and does not dispose a case to the fullest extent possible.

The district court’s sentence was affirmed.

Tenth Circuit: Sixth Amendment Right to Counsel Attaches Only to Criminal Proceedings

The Tenth Circuit Court of Appeals issued its opinion in United States v. Calhoun on Monday, August 10, 2015.

Michael Calhoun, along with two co-defendants, appeared before the Tenth Circuit seeking to appeal the district court’s denial of his motion to quash a 60-count indictment. At that time, the Tenth Circuit deemed the appeal premature and dismissed it for lack of subject matter jurisdiction. United States v. Tucker, 745 F.3d 1054 (10th Cir. 2014). Defendant then pleaded guilty to one count of conspiracy to commit wire or mail fraud, reserving the right to appeal the denial of his motion to quash. He was sentenced to five years’ probation and again appealed.

On appeal, Defendant argued that he suffered ineffective assistance of counsel at the grand jury, specifically arguing his criminal counsel encouraged him to incriminate himself in order to help the bank overturn a $65 million civil judgment related to Defendant’s scheme, thereby violating his Sixth Amendment right to counsel and requiring suppression of the grand jury testimony and quashing of the indictment. The Tenth Circuit found a fatal flaw in Defendant’s argument—the Sixth Amendment right to counsel does not attach until criminal proceedings have begun, so he had no right to counsel at the grand jury proceeding.

The district court’s denial of the motion to quash was affirmed.

Tenth Circuit: Enticement of a Minor Conviction Affirmed Regardless of Defendant’s Intent to Engage in Specific Acts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Faust on Tuesday, August 4, 2015.

David Faust exchanged a series of email and text messages with an FBI agent posing as a 37-year-old woman named “Joelle,” where he agreed to pay $200 for a sexual encounter with Joelle and her 12-year-old daughter. On the day of the agreed-upon encounter, he told Joelle he did not have the money, and she said that the sexual encounter would only be with her young daughter. He agreed to meet Joelle and the daughter at a motel. He drove to the motel but did not park; instead, he turned around and got on the highway, where he was arrested. He was indicted on one count of attempted online enticement of a minor, and, after a jury trial, he was convicted and sentenced to 10 years’ imprisonment followed by 10 years’ supervised release.

Faust appealed, arguing the evidence was insufficient to support his conviction and that the district court abused its discretion by refusing his proposed specific intent jury instruction. The Tenth Circuit first addressed Faust’s sufficiency argument. Faust contended that by driving away from the motel he showed that he had no intention of following through with the arrangement for a sexual encounter with Joelle’s daughter and therefore the government failed to show that he took a substantial step toward illegal sexual activity. The Tenth Circuit noted that a jury could well have disagreed with Faust’s characterizations of why he drove away from the parking lot but also found that it need not reach Faust’s argument because it was predicated on a misunderstanding of the mens rea element of the offense. The Tenth Circuit noted the government was only required to show that Faust intended to entice a minor, not that he intended to commit the underlying sexual act. The Tenth Circuit found ample evidence to support that Faust took a substantial step toward the inducement, enticement, or persuasion of a minor. The Tenth Circuit also noted that it was of no consequence that Faust’s communications were through an adult intermediary. The Tenth Circuit noted that even if Faust had never traveled to the motel the evidence was sufficient to support his conviction based on his conveyed desire to follow through with the sexual act with the daughter after the mother said she would be unavailable.

The Tenth Circuit also rejected Faust’s argument that the district court erred in refusing his specific intent instruction. Although Faust failed to properly preserve the issue for appeal, the government failed to raise that as a bar to review, so the Tenth Circuit reviewed the issue for abuse of discretion. The Tenth Circuit noted that specific intent instructions are disfavored because of their potential to confuse the issues, and the better practice is to instruct on the intent necessary for the crime of conviction. The Tenth Circuit analyzed the jury instructions and found they sufficiently advised that the requisite mens rea was that defendant “knowingly” act. Because the district court correctly defined “knowingly,” the Tenth Circuit found no abuse of discretion in its rejection of the specific intent instruction.

The district court’s judgment was affirmed.