May 20, 2019

Tenth Circuit: No Error in Failing to Grant Mistrial After Prosecution Elicited Previously-Barred Testimony

The Tenth Circuit Court of Appeals issued its opinion in United States of America v. Hargrove on Wednesday, January 2, 2019.

Defendant Mr. Hargrove was convicted and sentenced to sixty months imprisonment for conspiracy to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846, and of possession with intent to distribute 100 kilograms or more of a substance containing a detectable amount of marijuana, and aiding and abetting said possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

Mr. Hargrove raised two challenges on appeal. First, the district court erred in failing to grant him a mistrial after the prosecutor elicited testimony that the district court had previously barred. Second, the district court erred in failing to grant him safety-valve relief under § 5C1.2 of the United States Sentencing Guidelines (U.S.S.G.). The Court of Appeals found no error in the district court’s rulings, and affirmed the district court.

Mr. Hargrove and two others were all found in Mr. Hargrove’s truck in the desert near the border between Arizona and New Mexico. Mr. Hargrove’s truck contained nearly 300 pounds of marijuana and two firearms. Prior to trial, Mr. Hargrove filed a motion in limine, in part to request that the district court exclude evidence that one of the firearms was stolen. The district court ruled that this evidence was inadmissible, as the risk of prejudice substantially outweighed any conceivable relevance, but allowed testimony about the presence of loaded firearms in the truck.

During trial, the prosecutor elicited testimony about the stolen gun, to which Mr. Hargrove’s counsel promptly objected and moved for mistrial. The court instructed the jury that they were to disregard anything regarding the firearm or its ownership. The prosecutor also took remedial measures during the remainder of the trial. Specifically, the prosecutor withdrew an exhibit displaying weapons retrieved from the truck, did not seek testimony from its expert witness regarding the use of firearms in the narcotics trade, and did not discuss either firearm during its closing arguments.

Following Mr. Hargrove’s conviction, Mr. Hargrove argued that he qualified for the safety-valve adjustment during sentencing under U.S.S.G. § 5C1.2. The district court denied Mr. Hargrove safety-valve relief.

With respect to the district court’s denial of Mr. Hargrove’s motion for mistrial, the Court weighed the three factors of the Meridyth test. First, the Court considered whether the prosecutor acted in bad faith. The Court noted that the prosecutor had specifically instructed the witness not to testify about the stolen nature of the gun. Further, the prosecutor’s conduct in immediately accepting responsibility for the improper testimony and taking steps to mitigate its prejudicial effects throughout the remainder of the trial was a strong indication that the prosecutor did not act in bad faith. The Court found this factor to weigh in favor of the government.

Next, the Court considered whether the district court limited the effect of the improper statement through its instructions to the jury. The Court noted that the district court gave two limiting instructions to the jury, one directly following the improper testimony, and one following the close of evidence. Because the district court had expressly and specifically emphasized that the jury was not to consider the improper statement for any purpose, the Court presumed the jury understood it was obliged not to consider any inferences based on such testimony and found this factor to weigh in favor of the government.

Finally, the Court considered whether the improper remark was inconsequential in light of the other evidence of the defendant’s guilt. The Court found that there was undisputed testimony which unequivocally indicated Mr. Hargrove was aware of and actively participated in the drug exchange, and any improper effect the improper statement may have had on the jury paled in comparison to the total weight of the government’s evidence, and therefore found this factor to weigh in favor of the government. Because the Court found all three factors weighed in favor of the government, the Court concluded that the district court did not err in denying Mr. Hargrove’s motion for a mistrial.

Mr. Hargrove also asserted the district court erred in denying him a U.S.S.G. § 5C1.2 safety-valve adjustment during sentencing. The district court had concluded that Mr. Hargrove was ineligible for the safety-valve reduction because the loaded firearms were located in the truck in close proximity to the drug trafficking, and had the potential to facilitate the drug trafficking. Mr. Hargrove argued on appeal that his possession of the firearms was unrelated to the drug-trafficking activity.

The Court disagreed. The Court explained that in evaluating the firearms provision of the safety-valve provision, there is a focus on the defendant’s own conduct and the nature of possession. The Court stated that active possession, by which there is a close connection linking the individual defendant, the weapon, and the offense, is sufficient to bar the application of the safety-valve. The Court noted that Mr. Hargrove had made no argument that the firearms were not his nor that the firearms were merely constructively possessed, instead Mr. Hargrove had conceded actual possession of the firearms by admitting that the firearms belonged to him and that he had brought them in the vehicle to the scene of the arrest. The Court held that for purposes of satisfying the safety-valve criteria, a firearm is possessed in connection with the offense if the firearm facilitates are has the potential to facilitate the offense. The Court therefore concluded that the district court did not err in denying safety-valve relief.


HB 16-1023: Allowing the Use of Deadly Physical Force by Business Owners Against Intruders

On January 13, 2016, Rep. Everett and Sen. Lambert introduced HB 16-1023Concerning the Use of Deadly Physical Force Against a Person Who Has Made an Illegal Entry Into a Place of Business. The bill was assigned to the House State, Veterans, and Military Affairs Committee.

This bill introduces amendments to an already existing bill, extending the right to use deadly force against an intruder under certain conditions to include owners, managers, and employees of businesses.

There are a number of proposed amendments to C.R.S. § 18-1-704.5, “Use of deadly physical force against an intruder.” First, under subsection (1), instead of the statute stating that citizens of Colorado have a right to expect absolute safety within their own homes, the amended statute will state that absolute safety is expected within citizen’s dwellings and places of business.

Second, under subsection (2), it is proposed that the statute include that not only any occupant of a dwelling be justified in using any degree of physical force, but also any owner, manager, or employee of a place of business. Additionally, “place of business” has been proposed to be included where deadly force may be used against a person who has made an unlawful entry. “The owner, manager, or employee” is also proposed to be included in the statute where those persons have a reasonable belief that a crime has been committed by the person making an unlawful entry into the place of business.

Third, owners, managers, and employees of a place of business are proposed to be included under subsection (3) and (4) of the statute, making those persons immune from criminal prosecution and civil liability if deadly force is used in accordance with subsection (2) of the statute.

Lastly, it has been proposed to amend C.R.S. § 18-1-705, “Use of Physical Force in Defense of Premises,” to read “he or she” and “himself or herself” instead of referring only to males.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Insanity Defense Applies At the Time of Commission of the Act

The Colorado Court of Appeals issued its opinion in People v. Eastwood on Thursday, October 22, 2015.

Not Guilty by Reason of Insanity—Unlawful Possession of a Weapon on School Grounds—Attempted Murder—Assault—Child Abuse Resulting in Injury.

Defendant took a loaded rifle to his former middle school, where he shot and injured two students. A jury found him not guilty by reason of insanity on 10 of 11 counts, but guilty of unlawful possession of a weapon on school grounds.

On appeal, defendant contended that the evidence was not sufficient for a jury to conclude that he was sane when he unlawfully possessed a weapon on school grounds. Whereas the charged crimes of attempted murder, assault, and child abuse resulting in injury were limited to the few seconds in which defendant fired his rifle, the weapon possession charge spanned a longer time period. The jury could have viewed the evidence as demonstrating that, before the shooting, defendant was able to rationally interact with the clerk at the sporting goods store, the restaurant employee, and staff members and children at the school.

Further, some of the experts’ testimony supported the conclusion that although defendant was insane when he fired the shots at the children, he was able to appreciate the wrongfulness of his conduct at other times that day. Taken together, the lay person and expert testimony was sufficient for the jury to conclude beyond a reasonable doubt that defendant was sane when he arrived at the school with a rifle, even if the jury was not convinced beyond a reasonable doubt that defendant was sane when he actually fired the shots later that afternoon. The judgment, sentence, and order were affirmed.

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

Tenth Circuit: ACCA Residual Clause Unconstitutional; Case Remanded for Resentencing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Snyder on Monday, July 20, 2015.

John Henry Snyder, II, was driving erratically when an Oklahoma City police officer pulled him over. Upon approaching Snyder’s vehicle, the officer smelled the odor of burnt marijuana. Snyder produced a driver’s license and expired insurance verification and the officer decided to search the vehicle based on the burnt marijuana smell. The officer asked Snyder to exit the vehicle, at which point he attempted to flee and yelled to his passenger to “go with it or leave with it.” Additional officers arrived on scene and searched the vehicle. They found a gun under the driver’s seat, which Snyder admitted was his. Because of his three prior felony convictions, he received the mandatory minimum 15-year sentence required by ACCA.

On appeal, Snyder challenged the district court’s denial of his motion to suppress the firearm, contending the search was illegal. The district court concluded the firearm was admissible because the search fell under the inevitable discovery doctrine—because of his lack of insurance verification and arrest, police would have impounded his vehicle and found the gun on an inventory search. The Tenth Circuit found it did not need to reach the inevitable discovery doctrine because the search was legal based on the marijuana smell alone. The Tenth Circuit noted that it has held repeatedly that marijuana smell is sufficient to establish probable cause, and again held that to be true in this case.

Next, the Tenth Circuit evaluated the reasonableness of Snyder’s sentence under ACCA. Two of his convictions unquestionably fell under ACCA’s strictures since they were serious drug offenses. However, the third conviction for attempted aggravated eluding a police officer fell under ACCA’s residual clause, which the Supreme Court unequivocally held to be unconstitutional in Johnson v. United States, 576 U.S. ___ (2015). The Tenth Circuit remanded for resentencing consistent with Johnson.

The district court’s denial of the motion to suppress was affirmed, but the case was remanded for resentencing.

Colorado Court of Appeals: Counsel Not Ineffective for Failing to Appeal POWPO Conviction to Supreme Court

The Colorado Court of Appeals issued its opinion in People v. Ray on Thursday, July 16, 2015.

Possession of a Weapon by a Previous Offender—Ineffective Assistance of Counsel—Certiorari Petition—U.S. Supreme Court—Investigation—Affirmative Defense.

After police officers observed Ray driving his vehicle straight through an intersection while in a left turn lane, exceeding the speed limit, playing loud music, and driving recklessly, they stopped and searched his car, discovering a BB gun and a firearm. Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Ray was charged with and convicted of Possession of a Weapon by a Previous Offender (POWPO). Ray is on death row after having been convicted of first-degree murder in a separate case, and his POWPO conviction was used as an aggravating factor in determining his death sentence. Ray filed a Crim.P. 35(c) motion for post-conviction relief, which was denied.

On appeal, Ray contended that appellate counsel rendered ineffective assistance by failing to file a certiorari petition with the U.S. Supreme Court. Ray had no right to counsel to pursue a petition for certiorari review in the Supreme Court. Further, he did not establish any resulting prejudice from failure to file a petition, because (1) he failed to show that it was likely the petition would be granted, (2) the exclusionary rule would not have precluded suppression of the firearm found in his car, and (3) the good faith exception to the exclusionary rule would have ultimately precluded suppression of the firearm.

Ray also contended that trial counsel rendered ineffective assistance by failing to investigate whether others had driven his car before the POWPO arrest. Because there was no reasonable probability that the result of the trial would have changed if evidence that others had driven the car had been admitted, the court did not err in determining this claim was raised and resolved on direct appeal.

Finally, Ray contended that trial counsel rendered ineffective assistance by failing to investigate a potential affirmative defense based on his Second Amendment right to possess firearms for self-defense. However, such a defense was not supported by the evidence and would have conflicted with Ray’s theory of defense that he did not know the firearm was in his car. The order was affirmed.

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

Tenth Circuit: Conviction Stands Despite Jury’s Lack of Instruction on “Discharge” of Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Mann on Monday, May 18, 2015.

Clay Mann threw a firework into a neighbor’s bonfire at the neighbor’s peaceful gathering on an Indian reservation, and when members of the gathering approached the fenceline to confront Mann, he shot nine times, killing one man and grievously wounding one other man and the neighbor. For these acts, he was indicted on eight counts by a federal grand jury. Two weeks after the jury’s verdict, Mann filed a “motion to arrest judgment” based on the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), arguing that his conviction on Count 5 (a firearms offense based on the assault of the neighbor under § 924(c)) must be vacated because the jury did not find “discharge” of a firearm beyond a reasonable doubt. The district court conducted a plain error inquiry and determined it had erred by failing to instruct the jury on the element of discharging the firearm and the error was plain. The district court, however, found the error had not prejudiced Mann, because he had never contested that he fired shots. The district court sentenced Mann to three concurrent 51 month sentences for the involuntary manslaughter and two assault convictions, and a consecutive 120 month sentence for the § 924(c) conviction regarding the assault of the neighbor. Mann appealed.

The Tenth Circuit conducted a plain error review. Mann argued on appeal that the district court constructively amended count 5 of his indictment by not instructing the jury that, to convict, it needed to find beyond a reasonable doubt that he knowingly discharged his firearm in relation to the assault. Finding that the district court properly instructed the jury on the elements of a § 924(c) violation, the Tenth Circuit could discern no error, much less plain error. The Tenth Circuit found that the Alleyne error (failure to instruct the jury that it must find discharge beyond a reasonable doubt) did not qualify Mann for any relief in light of the overwhelming evidence that he discharged a firearm several times during the assault, including Mann’s own FBI interview in which he admitted discharging the firearm. Any error was harmless beyond a reasonable doubt in light of this evidence.

The Tenth Circuit likewise concluded Mann could not use the error from the Alleyne analysis on his constructive amendment claim, since he was not required to show constructive amendment for his Alleyne claim. Although the government endorsed Mann’s “shortcut,” the Tenth Circuit did not. Turning to the merits of Mann’s argument, the Tenth Circuit noted the case law on which he relied for his claim of error had been rejected by the Supreme Court. The Tenth Circuit, relying on good case law, found that Mann failed to show any error and rejected his constructive amendment claim.

The district court’s conviction was affirmed.

Colorado Court of Appeals: Declaratory Judgment Appropriate and Statutory Definition of Firearm Encompasses Bow Hunting

The Colorado Court of Appeals issued its opinion in Moss v. Board of County Commissioners for Boulder County on Thursday, March 26, 2015.

Declaratory Judgment—Firearm—Definition—County Board—Geographic Area.

This case concerns a county resolution that prohibits firearm discharges in a designated area of Sugar Loaf Mountain in unincorporated Boulder County. Moss and Westby live and own property in this area. Colorado Advocates for Public Safety is a nonprofit corporation whose mission is to assist in protecting the public from safety hazards, such as those involving firearms. This dispute between plaintiffs and the Board of County Commissioners for Boulder County (County Board) centers around the definition and scope of this resolution.

On appeal, plaintiffs contended that the district court erred in dismissing their declaratory judgment claim, wherein plaintiffs sought a judicial determination that, as a matter of law, the word “firearm” in CRS §§ 30-15-301 to -302 and Resolution 80-52 includes bows and arrows. Because a declaratory judgment would terminate the controversy or uncertainty regarding the scope of the resolution, plaintiffs’ declaratory judgment claim was properly raised in the district court and the district court erred in declining to address it.

The statute that authorizes counties to prohibit firearm discharges expressly defines “firearm” or “firearms” as “any pistol, revolver, rifle, or other weapon of any description from which any shot, projectile, or bullet may be discharged.” A bow is a weapon and an arrow is a projectile. Therefore, a bow and arrow constitute a “firearm” under this statute, and plaintiffs were entitled to a declaratory judgment in their favor on this issue.

Plaintiffs also requested an expansion of the geographic area covered by the resolution in their claim for injunctive relief. CRS § 30-15-302 does not subject the County Board to any procedural requirements to address plaintiffs’ request, and Colorado’s Administrative Procedure Act does not apply to the County Board. Additionally, plaintiffs concede that they have not asserted and cannot assert a claim under CRCP 106(a)(4) because there has been no final agency action in this case. Finally, plaintiffs have failed to state a constitutional due process claim on which relief can be granted. Therefore, the district court did not err in dismissing plaintiffs’ claim for injunctive relief on this issue.

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

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.

Tenth Circuit: Unregistered Firearm Charge Upheld Even Where Defendant Could Not Register Firearm

The Tenth Circuit Court of Appeals issued its opinion in United States v. Berres on Wednesday, January 21, 2015.

Bryan Berres entered a propane company in Oklahoma and set his backpack by the front door. Berres first asked if he could call his wife, then requested employees call an ambulance to take him to the VA hospital. Employees, suspecting Berres needed psychiatric treatment, called the ambulance. Medical personnel asked Berres if he had weapons. He relinquished a knife and said he had a .38 pistol in his bag. Police were called, and when they questioned Berres about the bag, he told police it also contained a flash bang device, electric matches, 8″ leads, and squibs. The propane company was evacuated, and Berres was transported to the hospital.

While at the hospital, an ATF agent from the Drug and Violent Crime Task Force interviewed Berres about the contents of the bag. Berres was “more than willing” to talk with the agent, and relayed that the bag contained a flash bang device, a .38 pistol, about 50 feet of Class C squib, about 70 feet of red paper fuse, two pounds of black powder, and night vision goggles. Berres relayed that he was taking the items to a wooded area to “get the government out of his body.” The agent spoke with the ATF officers at the propane store and they safely opened the backpack, finding a flash bang device, two cans of black powder, six feet of cannon fuse, 36 electric matches, 60 feet of quick match fuse, a .38 pistol, nearly 300 rounds of .38 ammunition, and 30 rounds of .223 ammunition. Berres was subsequently placed on a 72-hour mental health hold by hospital personnel.

Berres was eventually charged with three counts of possession of unregistered firearms, one for the flash bang device (Count 1) and two for combinations of parts from which an explosive device can be readily assembled (Counts 2 and 3). He filed a motion to dismiss, arguing that Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device, and that Counts 2 and 3 were multiplicitous. He also filed a motion to suppress the statements he made to the ATF agent at the hospital. The district court denied his motions but said that he could raise his multiplicity argument again at trial. Berres pled guilty before trial, specifically reserving his right to appeal.

On appeal, Berres argued first that his conviction on Count 1 violated his due process rights because it was legally impossible for him to register the flash bang device as a transferee; flash bang devices must be registered by the maker or transferor and the transferee must be identified as part of the registration process. The Tenth Circuit, however, found that even though Berres could not register the device, it was legally registrable, and therefore the Tenth Circuit upheld his conviction on this count.

Berres next argued that Counts 2 and 3 failed to state an offense, because there is no duty to register an explosive device until it is assembled. The Tenth Circuit disagreed. The Tenth Circuit found that the statutory language “any combination of parts” precluded Berres’ argument. Berres next argued that Counts 2 and 3 were multiplicitous, since he could only make one explosive device from the parts. However, the indictment listed each can of black powder as a single ingredient, so the combinations of black powder canisters, cannon fuse, and electric matches could have been used to make more than one explosive device. The Tenth Circuit found no double jeopardy in the two counts.

Finally, Berres argued that his statements to the agent at the hospital should have been suppressed. The Tenth Circuit examined the circumstances of the interview and found it to be non-custodial. Berres was at the hospital at his own request, he was seated by the door during the interview, and he stated he was “more than willing” to talk with the agent. The Tenth Circuit found no error in allowing Berres’ statements.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Officers Had Ample Evidence of Defendant’s Presence When Executing Arrest Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Denson on Tuesday, December 30, 2014.

Steven Denson was convicted of armed robbery and served prison time. After being released from prison, though, he did not report to his probation officer as required. Eventually, authorities found his name on a residential Wichita utility account and secured an arrest warrant. Officers used a hand-held Doppler device and other evidence to determine that the residence had one occupant, and, when no one answered the door, forced their way into the residence, where they found Denson and a stash of guns. Denson pled guilty to possession of firearms but reserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. He sought reversal from the Tenth Circuit on three grounds. He contended (1) officers entered his home without reason to believe he was present, (2) officers lacked a lawful basis to search his home after arresting him, and (3) officers had no right to seize his guns.

The Tenth Circuit found that the officers had probable cause to infer that Denson was home before entering the residence. Denson had opened a residential utility account in his name on only the one residence; he hadn’t reported any recent earnings, leading officers to suspect he was unemployed; he was hiding from law enforcement, making it unlikely he was out and about; and the house’s electric meter was especially active, leading officers to infer someone in the house was using electricity. Although the Tenth Circuit found the Doppler evidence to verge on an unlawful intrusion into Denson’s privacy, they found ample other evidence  to infer that someone was home when officers executed the arrest warrant.

The Tenth Circuit next addressed Denson’s argument that the search was unlawful. The Tenth Circuit relied on well-settled law to find that the officers were allowed to conduct a “quick and limited search of the premises” in order to ensure their safety. Because the officers knew Denson was a fugitive, had a history of violent crime, was a gang member, and had violent associations, they had ample reason to conduct a cursory search of the residence.

Denson’s final argument was that the officers lacked probable cause to seize the weapons. However, Denson had a prior felony conviction, and he was not allowed to possess the firearms. Addressing his contention that the weapons belonged to his roommate, the Tenth Circuit found that the possession standard is met when a felon has knowledge of and access to the weapons in question. The guns in Denson’s house were not locked and were available in a closet to anyone who wished to enter the closet. The officers were well within their rights to seize the weapons.

The district court’s judgment was affirmed.

SB 15-086: Repealing Requirement of Criminal Background Check Prior to Gun Sales

On January 14, 2015, Sen. Kent Lambert and Rep. Janak Joshi introduced SB 15-086 – Concerning Criminal Background Checks Performed Pursuant to Transfer of FirearmsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the requirement that before any person who is not a licensed gun dealer transfers possession of a firearm to a transferee, he or she must require that a criminal background check be conducted of the prospective transferee and must obtain approval of the transfer from the Colorado bureau of investigation (CBI). The bill repeals the requirement that CBI impose a fee for performing an instant criminal background check pursuant to the transfer of a firearm. The bill makes conforming amendments.

The bill was assigned to the Senate Judiciary Committee.

Tenth Circuit: Intrinsic Evidence Not Unfairly Prejudicial Where Necessary to Explain Circumstances of Arrest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hood on Wednesday, December 17, 2014.

Oklahoma City police were investigating a string of burglaries and knocked at the door of an apartment belonging to the owner of a phone left at a burglary site. Although no one answered, a few minutes later residents of the apartment complex alerted police that someone was running from that apartment. The police caught the runner, Michael Hood, who was wearing a bulky coat despite the warm day and was fumbling in his pockets for something. Concerned that he might have a weapon, the police handcuffed and frisked Hood. He was subsequently indicted on two counts of being a felon in possession, related to the incident at the apartment in March 2012 and a separate incident in June 2012. After a jury trial, he was sentenced to 262 months’ imprisonment.

Hood appealed, arguing first that the police seized the firearm in March 2012 in violation of his Fourth Amendment rights. Hood argued that the officers’ use of weapons and handcuffs was not justified, also asserting that the officers waived the opportunity to argue justification for using force. Hood next argued that, if the court should find excessive force from the March 2012 incident, the conviction from June 2012 should also be vacated since the prosecutor relied heavily on evidence from the March incident to convict on the June incident.

The Tenth Circuit was not persuaded by Hood’s waiver argument. The government responded to Hood’s motion to suppress that the officers’ seizure and detention of Hood was a reasonable Terry stop supported by suspicion of criminal activity, and did not waive their argument. As to whether the use of force was justified, the Tenth Circuit affirmed the district court’s conclusion that it was. Hood argues that it was not reasonable because the officers lacked prior belief that he was dangerous. Although the officers were investigating a different individual, Hood ran from the apartment of the person they were investigating and his behavior was suspicious. The Tenth Circuit found the officers were fully justified in drawing their weapons and ordering him to the ground under these circumstances. Because the Tenth Circuit found no error in the search and seizure, it declined to address the arguments relating to the June 2012 possession conviction.

Hood also argued that evidence concerning the burglaries was unduly prejudicial under FRE 404(b)(1) and should have been suppressed. However, this evidence was not admitted to show that Hood acted in accordance with his character; the evidence was admitted as intrinsic evidence. The evidence concerning the burglaries was necessary to explain why the police were at the apartments and why they had heightened suspicion as to Hood. The Tenth Circuit also evaluated for unfair prejudice under Rule 403 and found none. Hood was never named as a suspect in the burglaries, so there was no unfair prejudice in admitting evidence regarding the circumstances of Hood’s arrest.

Finally, Hood argued that a prior conviction for pointing a gun at another person should not count as a violent felony sentence enhancer under ACCA. The Tenth Circuit disagreed. Hood pleaded guilty to pointing a firearm at another person with the intent to injure the other person either physically or through emotional intimidation. The Tenth Circuit noted that using a firearm to threaten another is precisely the sort of violent force proscribed by ACCA.

The Tenth Circuit affirmed Hood’s convictions and sentence.