May 3, 2016

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.

Tenth Circuit: Use of False Identity Immaterial to Wire and Mail Fraud and Cannot Form Basis for Convictions

The Tenth Circuit Court of Appeals issued its opinion in United States v. Camick on Friday, July 31, 2015.

Leslie Lyle Camick was a Canadian citizen who entered the United States in 2000 using the identity of his brother, Wayne Bradly Camick, who had died in infancy. Camick assumed his brother’s identity in order to avoid outstanding child support obligations and back taxes and to evade permanent driver’s license revocation due to numerous intoxicated driving offenses. Camick used his brother’s identity throughout his time in the United States.

In 2004, Camick began a professional and romantic relationship with Lyn Wattley. The couple eventually moved to Kansas and bought a home together under Camick’s assumed identity. In 2010, Camick and Wattley, together with machinist Mark Nelson, began developing an idea for a new way to cover manholes. In 2011, Camick’s and Wattley’s relationship deteriorated, and unbeknownst to Wattley, Camick filed a provisional patent application for the locking manhole cover. In the summer of 2011, Camick drove a 2006 GMC truck that he had paid for but that was titled in Wattley’s name to Arizona. Wattley became concerned about Camick driving since he had had prior intoxicated driving incidents, so she reported the vehicle stolen. Camick was arrested in New Mexico for theft of the truck but Wattley requested that the New Mexico charges be dropped. The Kansas warrant for the stolen vehicle remained outstanding.

In late 2011, Camick was arrested in New Jersey, where he was interviewed by U.S. Immigration Officer Jackey He to determine his immigration status. Eventually, Camick admitted his real name to Officer He and signed an affidavit that he had used his brother’s identity to enter and reside in the United States. Camick was placed under arrest and Officer He initiated removal proceedings against him. As a result of the arrest, Wattley discovered Camick’s true identity and initiated quiet title proceedings to remove the name Wayne Camick from their Kansas residence. She served Camick in the New Jersey detention center, but he failed to respond within the 30-day period and the Kansas court quieted title against him. More than a month after the Kansas court entered judgment, Camick submitted a response to the quiet title action, claiming he was the purchaser and owner of the subject property and that he had been unable to respond due to his immigration detention. The Kansas court responded by issuing a letter that Camick’s response did not comply with Kansas law and was untimely. Two months later, Camick sent another letter to the Kansas court claiming he had been “wrongfully detained” by ICE as a result of Wattley’s “falsified Police report.”

In March 2013, Camick was indicted on charges of mail fraud, wire fraud, material false statement to the U.S. Patent Office, and three counts of aggravated identity theft relating to the fraud and false statement charges. In July 2013, Camick filed a 42 U.S.C. § 1983 lawsuit against Wattley and others, alleging constitutional and tort violations arising from the 2011 stolen vehicle report. This lawsuit became the source of Camick’s obstruction of justice charge as contained in the government’s second superseding indictment. After a three-day trial, Camick was convicted of all seven charges and was sentenced to 48 months’ imprisonment followed by one year of supervised release. Camick was also ordered to pay $15,186 in restitution to Wattley. He timely appealed.

The Tenth Circuit analyzed the mail fraud charge, which was premised on the letter Camick mailed to the Kansas court regarding his failure to respond to the quiet title action. Camick argued the evidence was insufficient to show he made materially false statements with the intent to defraud. The Tenth Circuit agreed. The Kansas court and Wattley were aware of Camick’s true identity at the time he sent the letter, and he had been known as Wayne throughout his time in the United States. The Tenth Circuit held that Camick’s identity could have had no bearing on the Kansas court’s decision to uphold its default judgment. Camick’s statement that he had been “wrongfully detained” was likewise immaterial since it was incapable of influencing the Kansas court’s decision. The Tenth Circuit reversed Camick’s conviction for mail fraud and the related aggravated identity theft charge.

The Tenth Circuit next evaluated Camick’s challenges to the wire fraud and material false statement convictions, both of which pertained to the provisional patent application. Camick argued that because he was the actual inventor of the locking manhole cover and everyone knew him as Wayne Camick, his use of that name on the provisional patent application was insufficient to show a false statement with intent to defraud. The Tenth Circuit again agreed, holding that the false statements were immaterial to the provisional patent application. Because the provisional patent application did not require an oath or declaration by the applicant, the Tenth Circuit found Camick’s fraud in using his brother’s name immaterial to the provisional patent application. The Tenth Circuit reversed the convictions for wire fraud and material false statement. The Tenth Circuit also reversed the accompanying aggravated identity theft charges.

Camick challenged his obstruction of justice charge, arguing the evidence was insufficient to show that he filed the civil rights suit against Wattley with retaliatory intent. The Tenth Circuit, drawing inferences of retaliation from the timing of his filing, disagreed. The Tenth Circuit upheld this conviction. Judge Kelly dissented from this part of the opinion; he would have reversed the obstruction of justice conviction as well.

Finally, Camick argued that the restitution award improperly failed to tie Camick’s harms of conduct to the restitution requested by Wattley. The Tenth Circuit evaluated the restitution award and reversed the parts of the award requested for Wattley’s quiet title action and review of the provisional patent application. The Tenth Circuit also reversed the award of costs incurred in a separate civil lawsuit.

Camick’s convictions for mail fraud, wire fraud, material false statement, and aggravated identity theft were reversed. Camick’s conviction for obstruction of justice was affirmed. The case was remanded for a hearing on the remaining restitution award.

Colorado Court of Appeals: No Error in Admission of Phone Call to Show Context for Defendant’s Statements

The Colorado Court of Appeals issued its opinion in People v. Smalley on Thursday, October 8, 2015.

Hearsay—Admissions—Prosecutorial Misconduct—Jury—Recorded Statements.

Smalley was convicted of possession of a weapon by a previous offender, a felony. On appeal, he contended that the trial court erred in admitting the recording of his phone call from jail to a woman named Jennifer Dressler because Dressler’s statements were hearsay. A defendant’s own out-of-court statements are not hearsay when offered against the defendant. The statements made by Dressler during the conversation were not hearsay because they were offered to provide context for defendant’s statements and not for the truth of the matter asserted.

Smalley next contended that the trial court erred in permitting the prosecutor to use Dressler’s statements for the truth of the matter asserted in closing arguments. Any improper argument, however, did not rise to the level of plain error.

Smalley further contended that the trial court erred by allowing the jury unfettered access during deliberations to recordings of the Dressler call and two other phone calls to which Smalley was a party. The court properly exercised its overall discretion in giving the jury access to the recorded statements during its deliberations, and the court properly gave the jury a limiting instruction.

Finally, Smalley contended, and the Court of Appeals agreed, that the trial court erred in not giving him an opportunity to speak on his own behalf at his sentencing hearing. The Court applied the plain error standard to determine whether the error warranted reversal. Here, the record shows that the trial court did not directly address Smalley or personally invite him to speak. The error was obvious and substantial, and it cast serious doubt on the reliability of the sentence. Accordingly, the sentence was vacated and the case was remanded for resentencing to allow Smalley an opportunity to speak on his own behalf.

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

Colorado Court of Appeals: Psychiatrist’s Brief Statements Tending to Imply Guilt Harmless

The Colorado Court of Appeals issued its opinion in People v. Marko on Thursday, October 8, 2015.

First-Degree Murder—Sexual Assault—Not Guilty by Reason of Insanity—Challenge for Cause—Mistrial—Miranda—Motion to Suppress—Search Warrant—Prosecutorial Misconduct—Military—Right to Counsel—Voluntariness—Merger—Multiplicity.

The victim met with Marko after knowing him a few months through an online social network account. Marko admitted driving the victim to the mountains, where he knocked her unconscious, sexually assaulted her, blindfolded and gagged her, and cut her throat with a knife, killing her. At trial, a jury rejected Marko’s insanity defense and found him guilty of first-degree murder, sexual assault, and attempted sexual assault.

On appeal, Marko argued that the court erred in denying the challenge for cause to Juror C because Juror C made un-rehabilitated statements indicating an inability to follow the law on the insanity defense. Any error was harmless because Juror C did not serve on the jury, and Marko failed to show that he was prejudiced by it.

Marko also argued that the trial court erred in denying his motion for a mistrial after Juror M expressed concerns in front of the other jurors that Marko would be released in a short period of time if he were found not guilty by reason of insanity (NGRI). Juror M’s statements, however, did not indicate that he had any personal knowledge regarding how long those found NGRI were committed. Therefore, it could not be shown that the statements affected the verdict merely because they were improper, and the trial court did not abuse its discretion in failing to declare a mistrial.

Marko further argued that the trial court erroneously concluded that he was not in custody during the portion of the October 11 interview with the sheriff’s officers that occurred before he was advised of his Miranda rights, and thus the court erred in denying his motion to suppress the statements he made at that time. Marko was subject to restraint on his freedom of movement by virtue of his position in the military. However, because Marko was informed at the outset of the interview that he was not under arrest and was free to go at any time, he was not in custody during this portion of the interview. After Marko was advised of his Miranda rights, he did not thereafter properly invoke his right to silence by stating that he wanted to go home. Therefore, his statements were voluntary. Additionally, Marko did not invoke his right to counsel by stating he wanted an attorney only if the detective was going to administer a truth verification exam. Therefore, the trial court did not err in denying his motion to suppress.

Additionally, Marko argued that the trial court erred in not suppressing the evidence obtained from the search of his barracks room because the search was not conducted pursuant to a valid search warrant. Even if the search warrant was invalid, the law enforcement officers involved in obtaining and executing the warrant acted in an objectively reasonable manner. Therefore, the trial court did not err.

Marko also argued that the psychiatrist’s testimony violated CRS § 16-8-107(1)(a) and (1.5)(a) because the psychiatrist who performed his court-ordered sanity examination testified that Marko knew his actions were wrong rather than confining his testimony to whether Marko had the capacity to distinguish right from wrong or form the culpable mental state at the time of the offense. Evidence acquired for the first time from communications derived from a defendant’s mental processes during the court-ordered examination is admissible only as to the issue of insanity. Therefore, the psychiatrist’s statements that Marko knew the wrongfulness of his actions violated CRS § 16-8-107 and defendant’s right against self-incrimination. However, any error was harmless beyond a reasonable doubt because the other evidence regarding this issue was substantial, the psychiatrist’s comments were minimal, and the prosecution limited her comments to issues raised by the NGRI plea.

Marko additionally argued that the prosecutor made several statements during voir dire and closing argument that constituted prosecutorial misconduct. Although some of the statements were improper, they did not require reversal.

Finally, Marko argued, and the Court of Appeals agreed, that his attempted sexual assault convictions must be vacated under the doctrine of merger because the attempted sexual assault charges are lesser included offenses of the sexual assault charges. The judgment was affirmed in part, Marco’s convictions and sentences for attempted sexual assault were vacated, and the case was remanded with directions.

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

Colorado Court of Appeals: Momentary Eye Contact Sufficient to Support Bail Bond Violation Charge

The Colorado Court of Appeals issued its opinion in People v. Serra on Thursday, September 28, 2015.

Bail Bond Conditions— Protective Order—Harassment—Evidence—Contact—Character—Prosecutorial Misconduct.

Serra was the elected district attorney for the Seventh Judicial District when he was arrested and charged with unlawful sexual contact and extortion. The victim in this case, who had worked for Serra at the district attorney’s office for several years before his arrest, was also a named victim in the sexual contact case. Serra was released on a bail bond pending trial. A condition of the bond was that he have no contact with the victim. Several months before the date of the preliminary hearing in the unlawful sexual contact case, Serra encountered the victim at a department store. Based on that encounter, he was charged and convicted of violation of his bail bond conditions, violation of a protective order, and harassment.

On appeal, Serra argued that the evidence was insufficient to support his convictions. The evidence that Serra happened upon the victim, stared at her for 10 to 15 seconds, and made a facial expression supported his convictions for violation of bond conditions and violation of a protection order. The evidence was insufficient, however, to support his conviction for harassment because there was no evidence that he followed the victim. Therefore, the harassment conviction was vacated.

Serra argued that the trial court erred in defining the term “contact” for the jury and that it incorrectly defined the term. The term “contact,” as used in CRS §§ 18-8-212 and 18-6-803.5, has a commonly accepted and understood meaning. Thus, a further clarifying definition was not required to inform the jury of the governing law. However, the court’s definition of “contact” did not state the plain and ordinary meaning of the term. In light of the minimal amount of evidence establishing the element of contact, this error was not harmless. Therefore, Serra’s convictions for violation of bond conditions and violation of a protection order were reversed.

Serra also argued that the trial court erred in admitting evidence of the victim’s character for truthfulness. Because defense counsel’s cross-examination of the victim did not amount to an attack on her character for truthfulness, testimony that she was a truthful person was inadmissible. On remand, the trial court should not admit evidence that the victim is truthful unless her character for truthfulness is attacked first.

Serra contended that evidence of his bad character was improperly admitted. The witnesses’ testimony about their experiences with Serra’s smirk constituted “other acts” evidence. It was relevant here because it established that Serra used a smirk to communicate. If the testimony is offered as evidence on retrial, the trial court likewise must evaluate it for admissibility under CRE 404(b).

Finally, Serra contended that some of the statements the prosecutor made in closing were improper. On remand, the prosecutor should only refer to facts admitted in evidence and must not use the words “lie,” “BS,” “deceit,” or similar terms to refer to Serra’s testimony or defense counsel’s argument.

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

Tenth Circuit: Stale and Weak Information Not Sufficient to Provide Probable Cause for Search

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cordova on Monday, July 6, 2015.

An Oklahoma City police detective obtained a warrant to search Omero Cordova’s home. The warrant’s supporting affidavit was based on evidence from an unnamed informant that 21 months prior to the warrant’s execution, a drug transaction not involving Cordova had taken place outside his former home; one of the participants in that prior transaction had been at Cordova’s current home four months prior to the warrant’s execution; Cordova’s mother had purchased the home for him; and surveillance revealed that Cordova’s car was parked in his own driveway. Officers executed the search warrant and found four firearms, $12,000 in cash, 123.7 grams of marijuana, a digital scale, baggies, a heat sealer, and a ledger. The officers triggered Cordova’s security alarm, and the security company called Cordova, who returned home. He was arrested, and the officers requested that Cordova call his wife so they could determine her involvement in the drug scheme. Cordova repeatedly asserted that everything in the house was his.

Cordova was indicted on six counts, and he moved to suppress the physical evidence and his statements, arguing the affidavit did not provide probable cause to support the warrant. Although the district court agreed that the affidavit failed to provide probable cause, it allowed entry of the physical evidence and statements through the good faith exception. A jury convicted Cordova on all six counts and he was sentenced to 136 months’ imprisonment. He appealed.

On appeal, Cordova argued the affidavit contained so little indicia of probable cause that no reasonable officer would have relied on it and the district court erred in concluding otherwise. He also contends the police coerced his confession and the district court should have suppressed his statements. The Tenth Circuit agreed. Analyzing the affidavit, the Tenth Circuit found the information tying Cordova to the drug trafficking scheme was stale and weak. The Tenth Circuit noted the affidavit was devoid of any facts supporting the inference that Cordova or his home were involved in the other person’s drug transactions. The Tenth Circuit rejected the government’s argument that the other person had unfettered access to Cordova’s home, since it was based on one incident in which there was no evidence of drug activity. The Tenth Circuit remarked that the good faith exception is not limitless and could not apply in this instance.

The Tenth Circuit concluded the officers acted unreasonably in carrying out the warrant and reversed the district court’s decision. The Tenth Circuit also accepted the government’s concession that Cordova’s subsequent statements were fruit of the poisonous tree and reversed the district court’s denial of suppression.

Colorado Court of Appeals: Remand Necessary Where Mother Improperly Vouched for Child’s Veracity

The Colorado Court of Appeals issued its opinion in People v. Cernazanu on Thursday, September 10, 2015.

Sexual Assault on a Child—Testimony—Veracity.

For a number of years, defendant lived with his female cousin and her young daughter, I.W. I.W. was friends with J.K. According to J.K., when she was between the ages of 6 and 8 years old, defendant, on numerous occasions while she was sleeping, sexually assaulted her. I.W. also reported that defendant sexually assaulted her when she was 8 years old. A jury found defendant guilty of three counts of sexual assault on a child and sexual assault on a child (pattern of abuse).

On appeal, defendant contended that the trial court erred in permitting J.K.’s mother, C.D., to essentially testify that J.K. was not lying when J.K. first reported that defendant had sexually assaulted her. A witness may not opine with respect to whether another person was telling the truth on a specific occasion. Here, when C.D. testified that J.K. did not engage in her typical “lying” behavior on that occasion, it implied C.D.’s opinion that J.K. was telling the truth on that occasion. Therefore, the evidence elicited by the prosecution in this case was improper. Because there was no physical evidence of, or eyewitness testimony to, the alleged sexual assaults against J.K., and defendant did not admit to sexually assaulting her, J.K.’s credibility was the critical issue before the jury in determining whether the sexual assaults had occurred. Consequently, the error was not harmless. Defendant’s convictions were reversed and the case was remanded for a new trial.

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

Tenth Circuit: District Court Empowered to Consider All Relevant Conduct When Calculating Loss for Sentencing Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Alisuretove on Monday, June 8, 2015.

Elvin Alisuretove pleaded guilty to one count of conspiracy to commit wire fraud after authorities discovered his connection in a scheme to “skim” bank information off debit cards and make cash withdrawals from ATM machines. Alisuretove was sentenced to 63 months’ imprisonment followed by 36 months’ supervised release and was ordered to pay $240,682.27 in restitution. Alisuretove appealed both his sentence and restitution amount, arguing the district court erred in determining his total offense level, in calculating the amount of loss associated with his conduct, and in determining the amount of restitution owed under the Mandatory Victims Restitution Act (MVRA).

The Tenth Circuit first examined the total amount of loss attributed to Alisuretove. Under the Sentencing Guidelines, a loss between $200,000 and $400,000 would result in a 12-level increase to Alisuretove’s base offense level of 1. Alisuretove contends the district court’s calculation of $360,856.80 total loss was “clearly erroneous” because no evidence showed he placed or used the skimming devices. Alisuretove asserted that the only loss that should be attributed to him was the $140,000 he told officers about after arrest. The Tenth Circuit noted that the district court was empowered to consider not just the conduct proffered by defendant but also all of defendant’s relevant conduct. In this case, Alisuretove’s guilty plea, statements to law enforcement, and other evidence supported the district court’s calculation of $360,856.80 total loss. The Tenth Circuit found no error in this calculation.

The Tenth Circuit next evaluated the restitution amount under the MVRA. Alisuretove contended the district court erroneously took into account losses suffered by twelve financial institutions even though only five were named in the indictment. The Tenth Circuit found the word “victim” in the MVRA is not limited to only those victims named in the indictment but rather encompasses any person harmed in the course of defendant’s criminal conduct. However, because neither the PSR nor the district court made any factual findings regarding the specific losses suffered by the financial institutions, the Tenth Circuit remanded for recalculation of restitution.

The district court’s judgment was affirmed in part, reversed in part, and remanded for further findings.

Tenth Circuit to Implement eVoucher Effective July 20, 2015

The Tenth Circuit announced that effective July 20, 2015, all Tenth Circuit Appellate Criminal Justice Act vouchers must be submitted electronically. The eVoucher program is a nationally supported web-based program for the preparation, submission, monitoring, and approval of Criminal Justice Act vouchers. Practitioners can access the Tenth Circuit’s eVoucher database here. Only Internet Explorer may be used to access the eVoucher database; Chrome and Firefox are not allowed.

For information and training videos about the eVoucher database, click here. For the Tenth Circuit’s Criminal Justice Act policies and procedures, click here.

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

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

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

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

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

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

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

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

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

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