June 20, 2019

Archives for September 19, 2012

Tenth Circuit: Existence of an Enterprise Not an Essential Element of 18 U.S.C. § 1962(d) RICO Conspiracy

The Tenth Circuit Court of Appeals published its opinion in United States v. Harris on Tuesday, September 18, 2012.

The defendant, Tracy Harris, was convicted, among other crimes, of conspiracy to commit a substantive violation of the Racketeering Influenced and Corrupt Organizations Act (RICO) under 18 U.S.C. § 1962(d). He argued on appeal that the RICO conspiracy jury instruction was incorrect because the jury was not required to find the existence of an enterprise. The court reviewed for plain error and found none, holding that “the existence of an enterprise is not an element of § 1962(d) conspiracy to commit a substantive RICO violation.”

Next Harris argued that there was insufficient evidence to convict him because the indictment referred to a single enterprise, “the Crips,” but evidence at trial showed there no single Crips enterprise, but rather three sets of Crips. He argued the three sets were too loosely affiliated to be an enterprise under RICO. Although it had already rejected the argument that an enterprise needed to be proven, the court discussed what is necessary to establish an “association-in-fact” enterprise and held the evidence was sufficient to establish an association-in-fact enterprise.

The court also found no abuse of discretion in the district court’s refusal to instruct the jury on the affirmative defense of withdrawal. Harris failed to meet either of the withdrawal tests. He did not “take affirmative action, either by reporting to the authorities or communicating his intentions to his coconspirators.” Even if he had withdrawn from the gang, he had not withdrawn from the conspiracy of selling drugs.

Finally, because of the concurrent sentence doctrine, the court declined to address Harris’s challenge to his RICO sentence.

Tenth Circuit: Aiding-and-Abetting Use of Firearm During Drug Offense Does Not Require Action to Facilitate the Other’s Use

The Tenth Circuit Court of Appeals published its opinion in United States v. Rosemond on Tuesday, September 18, 2012.

Justus Rosemond, the defendant, was convicted of using a firearm during a federal drug-trafficking offense. He and Ronald Joseph were attempting to sell marijuana when the buyer stole the drugs and ran. Rosemond or Joseph shot at the fleeing thief. Joseph testified that Rosemond was the shooter, while other witnesses were not clear which of the two was the shooter. The district court instructed the jury on both of the government’s theories, the first that Rosemond was the shooter, the second that he aided and abetted another’s use of a firearm during the drug deal. The jury was not required to specify under which theory they convicted.

On appeal, Rosemond challenged the aiding-and-abetting instruction, which stated in part, “(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime.” The Tenth Circuit held that, based on three Tenth Circuit cases, the jury instruction was correct, even though other circuits require jurors to also find that “the defendant took some action to facilitate or encourage his cohort’s use of the firearm.”

The Tenth Circuit did not address Rosemond’s argument that there was insufficient evidence to support giving the aiding-and-abetting instruction because there was sufficient evidence under the alternative theory that he was the shooter. The defendant’s conviction was affirmed.

Tenth Circuit: Defendant’s Challenge of Sentence Under 28 U.S.C. § 2255 Denied

The Tenth Circuit published its opinion in In re Shines on September 18, 2012.

Criminal Defendant Shines moved to file a 28 U.S.C. § 2255 motion challenging his sentence.

Mr. Shines was convicted of possession of crack cocaine and of being a felon in possession of a firearm. His offense occurred on March 2, 2010. The Fair Sentencing Act of 2010 took effect on August 3, 2010, which eliminated the mandatory minimum 5-year sentence for his crimes. He was sentenced to 5 years’ imprisonment. Mr. Shines argued that he should have been sentenced under the Fair Sentencing Act that was in effect before his sentencing, when a 5-year sentence was not mandatory.

Because this is a question of statutory interpretation, and not a constitutional question, the Tenth Circuit DENIED Defendant’s § 2255 motion for authorization.

Tenth Circuit: Commissioner’s Denial of Social Security Disability Benefits Affirmed

The Tenth Circuit issued its opinion in Pennie Keyes-Zachary v. Astrue on Tuesday, September 18, 2012.

Pennie Keyes-Zachary appealed the district court’s order affirming the Commissioner’s decision denying her application for Social Security disability benefits. Applying the Medical-Vocational Guidelines, the ALJ concluded that Ms. Keyes-Zachary was not disabled within the meaning of the Social Security Act. After a thorough analysis of the case history and medical records, the Tenth Circuit held that the ALJ’s factual findings were supported by substantial evidence, and AFFIRMED the Commissioner’s decision.

Tenth Circuit: Kansas Secretary of State’s Refusal to Track Political Party’s Voter Affiliation Affirmed

The Tenth Circuit issued its opinion in Constitution Party of Kansas v. Kobach on September 18, 2012.

The Constitution Party sued the Secretary of State of Kansas, alleging that its First and Fourteenth Amendment rights were violated by the Secretary’s refusal to keep track of Kansas voters’ affiliation with the Constitution Party because the Constitution Party is not a recognized political party under Kansas law. It is undisputed that The Constitution Party did not satisfy the state statutory requirements for having the Secretary record and track voters’ affiliation with it.

Applying the balancing test pursuant to Anderson v. Celebrezze, the district court determined that Kansas’s system of tracking party affiliation did not unconstitutionally burden The Constitution Party’s rights.

On appeal, the Constitution Party argued that the district court misapplied the balancing test, and that Baer v. Meyer, 728 F.2d 471 (10th Cir. 1984) was the controlling case law. The Constitution Party argued that it had shown a sufficient modicum of political support to merit voter affiliation tracking as required by Baer.

The Tenth Circuit AFFIRMED the district court’s ruling in favor of the Secretary, based on its rejection of the argument on which the Constitution Party has chosen to hinge its appeal, namely whether it was entitled to relief as a matter of law, and not whether the facts in the record supported the Secretary’s claimed burdens that would result from voter affiliation tracking. The Court distinguished this case from the Baer case by explaining that decision was carefully confined to the plaintiffs in that case and was based on Colorado law.

Tenth Circuit: Unpublished Opinions, 9/18/12

On Tuesday, September 18, 2012, the Tenth Circuit Court of Appeals issued six published opinions and four unpublished opinions.

Still v. Herndon

Simmons v. Chapdelaine

Miller v. Astrue

United States v. Gonzalez-Arenas

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.