May 19, 2019

Archives for August 13, 2015

Running Past Our Limits 2015: Cause and Effect Can’t Do The Impossible

rhodesThis is the fourth year this blog has taken a summer break from our normal topics to reflect on life lessons learned from how I’m dealing with primary progressive MS through aggressive physical conditioning. The idea isn’t just to tell my story, but to find things we can all use to bring up our inner game.

I wrote this year’s series last winter, because there was too much going on to wait until now. Plus I needed the posts for a new book that will be coming out soon, about the new inner game we need to do “impossible” things. Doing the impossible was a theme in last year’s series, too: it referenced a short inspirational video some friends did about my workout routine, called Unstoppable:  What’s Your Impossible? You might take a moment to watch it and answer that question for yourself.

Last year, I wrote about my goal to be a lab rat. A few weeks later, I achieved my goal, and it wasn’t all it was cracked up to be. Laboratory science is about finding cause and effect. We put a high value on cause and effect in science, law, and life. Do this, get that. It’s useful. So we have quotes like this:

 “Shallow men believe in luck or in circumstance.
Strong men believe in cause and effect.”

Ralph Waldo Emerson

I usually like Emerson’s quotes, but that one makes me cringe. If I’ve learned anything this past year, it’s that cause and effect can’t do the impossible. In fact, these days I wonder how we ever became so enamored with cause and effect; there are so many exceptions to it. I’m not the only one who thinks this way:

In short, a working knowledge of the way in which causes and effects relate to one another seems indispensable to our ability to make our way in the world. Yet there is a long and venerable tradition in philosophy, dating back at least to David Hume in the 18th century, that finds the notions of causality to be dubious. And that might be putting it kindly.

Mathias Frisch, philosopher at the University of Maryland, member of its Foundations of Physics Group, and author of Causal Reasoning in Physics, in a recent Aeon Magazine article.

Cause and effect is one of the ways we judge the odds of a desired outcome happening. I like the way Sir Terry Pratchett evaluated the odds of impossible things happening in his book Mort:

Scientists have calculated that the chances of something so patently absurd actually existing are millions to one.

But magicians have calculated that million-to-one chances crop up nine times out of ten.

We need to stretch our brains if we want to do impossible things — and that includes getting them (and ourselves) out of the cause and effect loop. Maybe that’s why I’ve been watching Chriss Angel videos lately: nothing like a master illusionist to stretch your brain.

In that spirit, this year we’ll look at the neuroscience of motivation, how focused conscious intention empowers us to do things we shouldn’t be able to do, the one quality that “supersurvivors” share in overcoming major life challenges, and how the new normal can so thoroughly replace the old normal that we literally can’t see it anymore.

Those topics are neither cause and effect nor magic, but they are useful, at least in my world. Should be fun. See you next time.

You can read the entire Running Past Our Limits 2015 blog series on my personal website. We’ll just hit some highlights here. The new book is called Running For My Life:  The Impossible Inner Game of an MS Life Athlete. The first third is a collection of all the Running Past Our Limits posts from this blog. It will be out in late September. And while I’m doing a commercial, there will be a second book out late this year or early next, which will collect the Future of Law and Culture of Law posts from this blog. Both books will be available as FREE ebook downloads.

Colorado Court of Appeals: Announcement Sheet, 8/13/2015

On Thursday, August 13, 2015, the Colorado Court of Appeals issued 11 published opinions and 34 unpublished opinions.

People v. Mendenhall

People v. Ellis

People v. Boyd

People v. Terhorst

Burton v. Colorado Access

People v. Pimble

Houston v. Wilson Mesa Ranch Homeowners Association, Inc.

Ledroit Law v. Kim

Craig v. Masterpiece Cakeshop, Inc.

McGillis Investment Co. LLP v. First Interstate Financial Utah LLC

McClure v. JP Morgan Chase Bank NA

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Witness Testimony from Coconspirators who Received Plea Deals Not Inherently Unreliable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dewberry on Tuesday, June 23, 2015.

During an investigation of Virok Webb for crack cocaine distribution, the government became suspicious of Kennin Dewberry as Webb’s dealer. Some time in 2009 or 2010, Dewberry began supplying between 4.5 and 9 ounces of cocaine powder weekly to Webb, and Webb would convert the powder to crack cocaine or cut it with other ingredients (a process known as “the trick”) to double the quantity of powder. In October 2011 a grand jury issued a superseding indictment charging Dewberry, Webb, and others with two drug conspiracies: Count 1 charged them with conspiring to distribute 280 grams or more of crack cocaine and Count 2 charged them with conspiring to distribute 5 kilograms or more of powder cocaine. The government also filed an information stating that Dewberry had a prior felony marijuana conviction.

Dewberry filed a motion to sever his trial in March 2012, which the trial court denied as premature. He filed another motion to sever in February 2013, which the trial court granted. Dewberry’s trial was held in July 2013, and the government’s case was built almost entirely on the testimony of cooperating witnesses. All of the witnesses entered into plea agreements with the government. Dewberry moved for judgment of acquittal under F.R.Crim.P. 29 at the close of the government’s case and again at the close of his case, but the trial court denied both motions. The jury convicted Dewberry of both counts, and also issued special verdicts pertaining to the amount of drugs and finding he conspired to distribute 280 grams or more of crack cocaine and 5 kilograms or more of powder cocaine. In the PSR, the probation office recommended Dewberry be held accountable for 4.5 ounces of cocaine per week for a 21-week period, and of that he should be accountable for conversion of 2.5 ounces to crack cocaine. The remaining 2 ounces per week was doubled by employing “the trick,” and together these drug amounts equated to a base offense level of 34, which would lead to a presumptive sentencing range of 168 to 210 months, but Dewberry faced a mandatory minimum 20 year sentence because of his prior felony conviction. The district court adopted the PSR’s findings, sentencing Dewberry to concurrent sentences of 240 months for Count 1 and 168 months for Count 2. Dewberry appealed his convictions and sentence.

The Tenth Circuit first evaluated Dewberry’s sufficiency challenges to both counts. Dewberry asserted the government’s evidence was insufficient because it relied on cooperating witnesses who were not reliable and whose testimony was uncorroborated. The Tenth Circuit first noted that it would not reverse a conviction solely because the verdict was based on the uncorroborated testimony of a coconspirator. The Tenth Circuit similarly noted that credibility challenges are generally disfavored and found no reason to entertain Dewberry’s. Although Dewberry asserted the witness testimony was self-serving because they were offered plea deals, the Tenth Circuit found such arrangements common in criminal cases and the arrangement does not necessarily render the testimony incredible.

The Tenth Circuit next considered Dewberry’s challenges to the sufficiency of the evidence concerning the amount of crack cocaine. The jury must have based its finding of 280 grams of crack cocaine on reasonable foreseeability because there was no evidence that Dewberry handled that much. Dewberry contended that the quantity could not have been reasonably foreseeable to him. The Tenth Circuit disagreed, finding sufficient evidence to support the jury’s finding. The Tenth Circuit affirmed the conviction and 240-month sentence.

The Tenth Circuit considered Dewberry’s challenge to the amount of powder cocaine for which he was held responsible. Dewberry argued the amount of crack cocaine attributed to him was incorrect, which affected the amount of powder cocaine. The Tenth Circuit affirmed the district court’s finding, noting that because it made a plausible finding it was not clearly erroneous.

Finally, Dewberry argued the court erred in denying his first motion to sever and causing him to experience undue delays waiting for trial. The Tenth Circuit disagreed, finding Dewberry could show no prejudice since the trial court granted his second motion to sever and finding the issue of Speedy Trial Act delays inadequately briefed.

The convictions and sentences were affirmed.

Tenth Circuit: Unpublished Opinions, 8/12/2015

On Wednesday, August 12, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Duncan v. Quinlan

United States v. Davis

Rahab v. Freeman

United States v. Madrid

Rodriguez-Rosales v. Lynch

Jones v. Martin

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.