July 18, 2019

Tenth Circuit: Statutory Rape Not Per Se Crime of Violence for Sentence Enhancement Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Madrid on Monday, November 2, 2015.

Jonathan Madrid pleaded guilty to possession of methamphetamine with intent to distribute in 2014. The presentence investigation report (PSR) classified him as a “career offender” subject to sentence enhancement due to his two prior convictions, one of which was a New Mexico conviction for cocaine trafficking and the other of which was a Texas conviction for statutory rape. The career offender enhancement changed his Guidelines sentencing range from 92-115 months to 188-235 months. He was sentenced to 188 months. He appealed his sentence, arguing the Texas conviction does not qualify as a “crime of violence” under U.S.S.G. § 4B1.1.

The Tenth Circuit noted that a conviction counts as a crime of violence when it (1) has as an element the use, attempted use, or threatened use of physical force; (2) is specifically enumerated in the Guidelines as a crime of violence; or (3) otherwise involves conduct that presents a risk of serious injury. Using the modified categorical approach, the Tenth Circuit analyzed the Texas statute under which Madrid was convicted to see if it fits the definition of crime of violence. The parties agreed that force was not an element of Madrid’s crime of conviction. The Tenth Circuit noted that the Guidelines specifically listed “forcible sex offenses” as crimes of violence, but held that statutory rape is not per se a forcible sex offense. The Tenth Circuit looked only to the elements of the charged offense, not the defendant’s actual conduct, to determine whether the offense was forcible. Because the Texas statute under which Madrid was convicted did not contain an element of force, the Tenth Circuit declined to look at Madrid’s actual conduct and found that his offense did not qualify as a forcible sex offense for Guidelines purposes.

Finally, the Tenth Circuit examined the residual clause of the Guidelines. Following the U.S. Supreme Court’s invalidation of the residual clause of the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), the Tenth Circuit found that the substantially similar Guidelines clause was invalid as unconstitutionally vague. The Tenth Circuit relied on Johnson‘s holding in stating “[t]he vagueness doctrine exists not only to provide notice to individuals, but also to prevent judges from imposing arbitrary or systematically inconsistent sentences.” Because the Guidelines’ residual clause was substantially similar to that of the ACCA, the Tenth Circuit found it did not provide adequate notice to defendants and allowed potential abuse by the judiciary.

The Tenth Circuit remanded with instructions for the district court to vacate Madrid’s sentence and resentence him consistent with its opinion.

Tenth Circuit: District Court Judgment Affirmed Despite Multiple Assertions of Error

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brinson on Monday, December 8, 2014.

An undercover officer in Oklahoma solicited prostitution from a website called Backpage.com, and agreed to meet a prostitute at a motel in room 123. At the motel, Officer Osterdyk met C.H., who appeared much younger than 21, and she agreed to perform oral sex on him. She had a cell phone open on the bed, and received text messages during the exchange saying “Don’t do nothing. It’s the cops.” After receiving these messages, C.H.’s demeanor changed, and Officer Osterdyk arrested her.

Other officers were in the parking lot of the motel and observed a black SUV approaching room 123. One of the officers spoke to the hotel desk clerk, who reported that room 123 was rented out to Tarran Brinson, a young black male with dreadlocks or braids wearing a red shirt and a red Chicago Bulls hat. The clerk told the officer that Brinson was a “regular” at the hotel and had rented out four other rooms that week, always paying cash. The clerk said that Brinson drove a black SUV and pointed it out in the parking lot. It was the same SUV the officers saw approaching room 123. Roughly 45 minutes later, the officers found Brinson in the parking lot of a nearby motel and arrested him.

Brinson was charged with conspiracy to engage in sex trafficking, sex trafficking of children, attempted sex trafficking of children, use of a facility in interstate commerce in aid of racketeering enterprise, coercion and enticement, obstruction of justice, and obstruction of justice by threat or corruption. After the government presented its case, Brinson moved for a judgment of acquittal on all charges. The court granted his motion as to the obstruction of justice by threat or corruption charge and denied it as to all other counts. A jury convicted Brinson on the remaining six counts. He appealed on six points of error.

Brinson first argued the district court erred by allowing expert witness testimony on child prostitution, arguing the testimony would not have aided the jury’s assessment and it was not reliable because the expert officer was not familiar with the facts of the case. The Tenth Circuit disagreed. The officer presented testimony on certain terms of the child prostitution trade, which proved helpful to the jury because other witnesses used these terms in testimony. Brinson also argued the testimony was not reliable because the expert officer was not familiar with the facts of the instant case. However, his testimony was used to define terms of the prostitution trade, not to verify the facts of the instant case, and there was no error in its admission.

Next, Brinson argued the admission of certain Facebook and text messages violated his Sixth Amendment Confrontation Clause rights. Ample evidence suggested Brinson had authored the Facebook messages, and they were therefore properly admitted as statements of a party opponent, not implicating the Sixth Amendment. As for the text messages, Brinson failed to specify which messages violated his Sixth Amendment rights, so his argument failed.

Brinson also argued the district court erred in allowing introduction of hearsay statements to Officer Osterdyk during his undercover investigation. The statements did not constitute hearsay, as they were not offered to prove the truth of the matter asserted, but rather to explain why Officer Osterdyk was in room 123, why he knew the price of the sexual act, and why he agreed to pay for oral sex. The statements were not hearsay, and the Tenth Circuit found that even if they had been, they were not “testimonial” and therefore no Confrontation Clause violation occurred.

Brinson next argued the district court erred by admitting a certificate authenticating debit card records. The prosecution admitted the certificate to authenticate the records as business records under FRE 902(11). The Tenth Circuit has previously held that such certificates are non-testimonial and therefore do not implicate the Sixth Amendment. Brinson argued that the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), was dispositive, but the Tenth Circuit disagreed, finding instead that the records in Brinson’s case differed from those offered in Melendez-Diaz because the certificate did not contain any “analysis” that would constitute out-of-court testimony.

Brinson argued the evidence obtained after his arrest should have been suppressed, since the police lacked probable cause to arrest him. However, the police had ample reason to arrest Brinson, and there was no error in allowing the evidence obtained after his arrest.

Finally, Brinson argued the evidence was insufficient to support his conviction on each of the six counts. The Tenth Circuit analyzed each count individually and found a reasonable jury could have found Brinson guilty beyond a reasonable doubt of each count.

The Tenth Circuit found that the district court committed no error, and Brinson’s convictions were affirmed.

Colorado Court of Appeals: Parental Consent Not Required for Victim to Consent to Recorded Phone Conversation

The Colorado Court of Appeals issued its opinion in People v. Richardson on Thursday, April 24, 2014.

Motion to Suppress Statements—Challenge for Cause.

Until the victim, C.S., was almost 12 years old, he lived with his great-grandmother. Defendant, the great-grandmother’s brother, often visited the home. When the victim was 11 years old, defendant inappropriately touched the victim and then progressed to performing oral sex on the victim.

Defendant was arrested and, after waiving his Miranda rights, substantially admitted the victim’s allegations regarding sexual contact. He subsequently was charged with and found guilty of sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as part of a pattern of abuse.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the statements he made during his phone conversation with the victim, which were recorded by the police. Contrary to defendant’s argument, however, parental presence was not required for the victim’s consent to record the conversation with defendant to be valid.

Defendant also contended that the trial court erred when it denied his motion to suppress the statements he made during a custodial interrogation. The record supports the trial court’s finding that defendant did not unequivocally invoke his right to silence. Accordingly, the trial court did not err in denying defendant’s motion to suppress.

Defendant further contended that the trial court erred in denying his challenge for cause to Juror M. On her juror questionnaire, Juror M indicated that a relative had been the victim of a sexual assault, and that this would affect her ability to be a fair and impartial juror. She also wrote that she believed she could not be a fair and impartial juror because the case involved “a crime against a child.” The court thereafter questioned Juror M, who affirmed that she understood that the prosecution carried the burden of proof, and that she would listen to all the evidence and base her decision on the evidence despite her background. Therefore, the trial court did not abuse its discretion in denying defendant’s causal challenge to Juror M.

Summary and full case available here.

Colorado Court of Appeals: No Error to Allow Prosecution to Add Charges on Remand to Trial Court

The Colorado Court of Appeals issued its opinion in People v. Cook on Thursday, March 27, 2014.

Sexual Crimes Against Children—Amendment of Information—Rape Shield Statute—Alternative Suspect Evidence—CRE 404(b)—Continuance.

Defendant was convicted and sentenced on multiple charges of sexual crimes against children. The victims were defendant’s daughter (C.C.), the daughter of his former girlfriend (S.G.), and other unnamed children.

On appeal, defendant contended that the trial court erred in permitting the prosecution to add fourteen counts on remand following his successful appeal. The trial court had discretion to permit the information to be amended before trial, and it did not err by adding counts based on new evidence that did not exist before the first trial. Therefore, the court properly allowed the additional counts to the information.

Defendant asserted that the trial court erred in denying his motion to pierce the rape shield statute, thereby denying him the opportunity to present evidence of an alternate suspect. Where a defendant seeks to introduce alternate suspect evidence to show motive and opportunity, there must be proof that the alternate suspect committed an act directly connecting him to the crime. Where the alternate suspect evidence seeks to challenge the identity of the perpetrator, the alternate suspect’s prior act or crime must be similar to the present crime to be relevant and admissible. The trial court did not abuse its discretion in concluding that defendant’s offer of proof fits no stated exception and was not otherwise relevant to a material issue in the case.

Defendant also contended that the trial court erroneously permitted the prosecution to introduce CRE 404(b) evidence related to acts for which he had been acquitted in Boulder County. The prosecution proffered the evidence from the Boulder County case of C.C.’s interviews in 2004 and the child pornography found on defendant’s computers in Boulder, to show proof of identity, absence of mistake or accident, common plan or scheme, and also to demonstrate that the purpose of defendant’s conduct was relevant to this case. Therefore, the admission of the evidence offered by the prosecution was proper.

Defendant’s assertion that the trial court erred in denying his motion for a fourth continuance was discounted. The expert was able to complete his report, and there was no indication that defense counsel was unprepared for trial. Hence, defendant showed no actual prejudice resulting from the court’s ruling. The judgment was affirmed.

Summary and full case available here.

HB 14-1260: Adjusting Presumptive Ranges for Sexual Intrusion Crimes Against Children 12 and Under When Perpetrator is At Least 10 Years Older

On February 3, 2014, Rep. Mike Foote and Sen. Mike Johnston introduced HB 14-1260 – Concerning the Creation of Three Mandatory Minimum Presumptive Ranges for Defendants Convicted of a Felony Sex Offense Involving Intrusion Against a Child who is Under 12 Years of Age when the Adult Defendant is at Least 10 Years Older that has One of the Ranges Starting at 10 Years as the Minimum in the Range, and, in Connection Therewith, Creating an Indeterminate Lifetime Sentence with a Mandatory Minimum Presumptive Range of 10 to 16 Years for a Class 4 Felony; a Mandatory Minimum Presumptive Range of 18 to 32 Years for a Class 3 Felony; and a Mandatory Minimum Presumptive Range of 24 to 48 Years for a Class 2 FelonyThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a court to impose a sentence within an indeterminate minimum presumptive range to a maximum of the offender’s life upon an adult offender if he or she commits a class 2, class 3, or class 4 felony sexual assault that includes intrusion or penetration against a child who is under 12 years of age at the time of the offense and the offender is at least 10 years older than the child. For a class 2 felony the presumptive range is 24 to 48 years, for a class 3 felony it is 18 to 32 years, and for a class 4 felony it is 10 to 16 years.

The bill passed out of the House on March 18. On March 21, the bill was assigned to the Senate Judiciary and Appropriations Committees.

SB 13-198: Allowing Closure of Court to Public when Sexually Exploitative Materials or Forensic Interviews Related to a Child are Being Presented

On Wednesday, February 27, 2013, Sen. Cheri Jahn introduced SB 13-198 – Concerning Closing a Court to the Public When Sexually Exploitative Material Related to a Specific Child is Being Presented as Evidence. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill provides a court with the option to close the court to the public, when it is in the best interest of a child, when images of sexually exploitative materials or forensic interviews directly related to that child are being presented as evidence in court and the child or forensic interviewer is on the witness stand. On March 13, the Judiciary Committee amended the bill and sent it to the 2nd Reading Consent calendar for consideration by the full Senate.

Colorado Court of Appeals: Plain Language of C.R.S. § 18-1.3-202 Allows Incarceration for Each Specific Grant of Probation

The Colorado Court of Appeals issued its opinion in People v. Gravina on Thursday, February 28, 2013.

Deferred Judgment and Sentence—Sexual Exploitation of a Minor—CRS § 18-1.3-202.

Defendant appealed the trial court’s judgment revoking his deferred judgment and sentence, entering a judgment of conviction, and sentencing him for the crime of sexual exploitation of a minor. The judgment and sentence were affirmed.

In December 2010, defendant pleaded guilty to sexual exploitation of a child, a class 5 felony, for possessing nude photographs of his 17-year-old girlfriend. Pursuant to the plea agreement, the trial court granted defendant a deferred judgment and sentence for four years. Defendant agreed to complete Sex Offender Intensive Supervision Probation (SOISP) and other conditions, one of which was that he could not have “possession or have any contact with any form of . . . [m]aterial that contains nudity, sexual themes, and sexually explicit or violent images.”

In February 2011, defendant’s probation officer searched defendant’s house. She found a Hooters calendar and aMaxim magazine. She also found photographs of defendant with a naked woman and nine pornographic movies. This resulted in defendant being removed from his treatment program.

After a hearing, the trial court found defendant in violation of his probation and revoked his deferred judgment and sentence, and sentenced him to five years of SOISP. In addition, he was to serve ninety days in jail, with sixty days suspended and credit for one day served.

Defendant contended it was error to commit him to ninety days in jail after he had already been committed to ninety days in jail as a condition of his initial probation, because CRS § 18-1.3-202 allows only an aggregate of ninety days in jail as a condition of probation for any single conviction. The Court of Appeals disagreed. The Court found the plain language of CRS § 18-1.3-202 to allow a trial court to include as a condition of probation a commitment to jail for up to the maximum number of days permitted by statute. The ninety-day limit applies to each specific grant of probation and not to the sentencing for the underlying crime.

Defendant also argued it was error to revoke his deferred judgment because the terms of his probation were unconstitutionally vague as applied to the magazine and calendar, and the prosecution failed to prove that he knowingly possessed the movie and photos. The Court found no error. Defendant’s probation prohibited him from possessing “sexually oriented or sexually stimulating material.” Though neither the calendar nor the magazine was part of the record, the Court presumed the trial court was correct that they were sexually oriented or stimulating within the meaning of the probation condition. As for proving “knowing” possession, the Court found the record supported such a finding.

Summary and full case available here.

Tenth Circuit: District Court’s Denial of Qualified Immunity to Prison Warden Affirmed

The Tenth Circuit published its opinion in Keith v. Koerner on Tuesday, February 12, 2013.

Tracy Keith was an inmate at the Topeka Correctional Facility (“TCF”), an all-female state prison, between 2006 and 2010.  While there, she participated in a vocational training program. Her instructor, Ananstacio Gallardo, engaged in unlawful sexual acts with Ms. Keith, and she became pregnant. The pregnancy was terminated. Mr. Gallardo ultimately pled guilty to a charge of unlawful sexual relations and two charges of trafficking contraband.

Ms. Keith filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging violations of her rights under the Eighth Amendment. She named as Defendants former warden Richard Koerner and other Kansas Department of Corrections employees. Defendants filed a motion to dismiss, arguing in part that they were entitled to qualified immunity. The district court granted qualified immunity to all Defendants except Mr. Koerner and Mr. Gallardo and entered a default judgment against Mr. Gallardo. Mr. Koerner appeals from the district court’s denial of qualified immunity.

In resolving a motion to dismiss based on qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of defendant’s alleged misconduct.

As an initial matter, it is clearly established that a prison official’s deliberate indifference to sexual abuse by prison employees violates the Eighth Amendment. The question is whether Ms. Keith alleged facts sufficient to support such a deliberate indifference violation by Mr. Koerner. To state a claim, a plaintiff must only allege enough factual matter in her complaint to make her claim to relief plausible on its face and provide fair notice to a defendant.

Ms. Keith alleged facts that could tend to establish that Mr. Koerner was responsible for managing TCF and knew about multiple instances of sexual misconduct at TCF over a period of years, inconsistently disciplined corrections officers who engaged in prohibited sexual conduct with inmates and thus purportedly tolerated at least an informal policy which permitted sexual contact between prison staff and inmates. After reviewing the complaint, the Tenth Circuit concluded that Ms. Keith provided notice and nudged her claims beyond the conceivable to the plausible given that the Court had to accept accept the well-pleaded allegations as true.

Because Ms. Keith alleged facts sufficient to state a plausible claim for relief and survive a motion to dismiss, the district court’s denial of qualified immunity is AFFIRMED.

HB 13-1020: Developing Standards and Protocols for Collection and Processing of Evidence of Sexual Assault

On January 9, 2013, Rep. Frank McNulty and Sen. Ellen Roberts introduced HB 13-1020 – Concerning Evidence Collected in Connection with a Sexual Assault. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the executive director of the department of public safety to adopt rules concerning forensic medical evidence of a sexual assault (forensic evidence) collected by law enforcement agencies. The rules shall include:

  • Standards for when forensic evidence must be submitted by law enforcement agencies to the Colorado bureau of investigation or another accredited crime laboratory (laboratory); and
  • Time frames for when the forensic evidence must be submitted, analyzed, and compared to DNA databases.

The bill requires the consent of the victim prior to the release of forensic evidence following disclosure of the purpose for the release and allows the victim to withdraw consent.

To resolve the backlog of unanalyzed forensic evidence, the bill requires:

  • Law enforcement agencies to submit to the Colorado bureau of investigation (CBI) an inventory of all unanalyzed forensic evidence in active investigations that meets the standard for mandatory submission; and
  • The CBI to submit a plan to analyze all of the forensic evidence inventories by law enforcement agencies.

A law enforcement agency may develop its own plan to analyze forensic evidence if the evidence will be analyzed by June 30, 2014. The bill is assigned to the Judiciary and Appropriations Committees.

Colorado Court of Appeals: Trial Court Properly Denied Defendant’s Challenges for Cause of Prospective Jurors

The Colorado Court of Appeals issued its opinion in People v. Fleischacker on Thursday, January 17, 2013.

Sexual Assault on a Child—Challenge for Cause—CRS § 16-10-103(1)(b)—Double Jeopardy.

Defendant appealed the judgment of conviction entered against him after a jury found him guilty of sexual assault on a child, position of trust; sexual assault on a child, pattern of abuse; and sexual assault on a child. The judgment was affirmed.

Defendant contended that the trial court erred in denying his challenge for cause against Juror G. Juror G. told the court that he had worked in law enforcement for four-and-a-half years; that his daughter was a paralegal at the district attorney’s office; that his son worked for the Denver sheriff’s office; and that his son-in-law was a parole officer. He also stated that the prosecuting attorney had attended his daughter’s wedding the previous month. CRS § 16-10-103(1)(b) does not require the disqualification of a prospective juror related within the third-degree to a paralegal working in a district attorney’s office. Because Juror G.’s daughter was not an attorney, the trial court did not err in denying defendant’s challenge for cause under CRS §16-10-103(1)(b). Further, the trial court did not abuse its discretion in finding that Juror G. was not actually biased because of his numerous connections to law enforcement based on Juror G’s assurances to the court that he could hold the prosecution to its burden of proof and that he would be impartial to both sides.

Defendant also contended that the trial court erred in denying his challenge for cause against Juror J. Juror J.’s daughter was sexually assaulted by his brother-in-law when she was approximately 15 years old. Based on Juror J’s assurances that he could be fair in this particular case, could listen to the court’s instructions, and could hold the prosecution to its burden of proof, the trial court did not abuse its discretion in denying defendant’s challenge for cause to Juror J.

Defendant also argued that his convictions for Counts 2 and 3 violated his right to be free from double jeopardy because they were predicated on the same factual basis. The evidence demonstrated that defendant was not convicted twice for the same offense because there were factually distinct incidents of sexual assault. The predicate act for Count 2 was defendant touching the victim’s buttocks with his hand, and the predicate act for Count 3 was touching the victim’s buttocks with defendant’s lap. Any clerical error on the verdict forms did not undermine the fundamental fairness of the trial. Accordingly, the convictions for those counts did not violate defendant’s right to be free from double jeopardy.

Summary and full case available here.

Tenth Circuit: Postconviction Discovery Motion Does Not Toll Statute of Limitations for Filing Certificate of Appealability Application

The Tenth Circuit Court of Appeals published its opinion in Woodward v. Clline on Friday, September 7, 2012.

In 1991, applicant David Woodward pleaded guilty in Kansas state court to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a child, and felony murder. In 1994, he filed a motion requesting DNA testing for the purpose of his exoneration. It was unclear to the Court whether that motion was ever ruled upon. After filing various motions in state court in the intervening years, in 2011, Woodward filed in federal district court a certificate of appealability (COA) application alleging the COA one-year statute of limitations had not run because no court had ever ruled on his motion requesting DNA testing from 1994. Because the Tenth Circuit held that a postconviction discovery motion does not toll the limitations period for filing a COA § 2254 application, the Court denied the application for a COA and dismissed the appeal.

Tenth Circuit: Mandatory Minimum Sentence for Distribution of Child Pornography Affirmed; Remainder Dismissed for Lack of Subject Matter Jurisdiction

The Tenth Circuit Court of Appeals published its opinion in United States v. Ramos on August 27, 2012.

Mr. Ramos plead guilty to “knowingly and intentionally receiv[ing] . . . [child pornography]” in violation of 18 U.S.C. § 2252(a)(2). The Court sentenced Mr. Ramos to eighty-seven months in prison in accordance with § 2G2.2(b)(3)(B), sentencing Guidelines that mandated a 5-year mandatory minimum prison sentence.  Mr. Ramos appealed.

On appeal, Mr. Ramos raised two issues. First, he contended that there was an insufficient basis for the district court to conclude that he “distributed” child pornography under § 2G2.2(b). Second, he argued that the mandatory-minimum sentence applied to his case violated the Equal Protection Clause of the Fifth Amendment and the Sixth Amendment.

The Tenth Circuit dismissed Mr. Ramos’ first argument as unpersuasive, holding that the district court properly ruled Mr. Ramos’ behavior constituted “distribution” of child pornography.  The Tenth Circuit dismissed the remainder of his appeal involving his constitutional challenges for lack of standing and therefore subject matter jurisdiction.