Kansas Federal Public Defender's Blog

Subscribe to Kansas Federal Public Defender's Blog feed
Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger694125
Updated: 15 min 6 sec ago

Tenth Circuit Breviaries

Mon, 10/26/2020 - 14:06

Fourth Amendment

Remember to review the affidavits carefully in those multi-defendant conspiracy cases. That's one lesson of Bickford v. Hensley. Deputy Hensley secured arrest warrants for 44 claimed marijuana conspirators, using a boilerplate affidavit. In Mr. Bickford's case, two accusatory paragraphs did not apply ("[t]he above named defendant assisted this conspiracy . . ."; "the above named defendant conspired . . ."). Mr. Bickford was nonetheless arrested on the warrant, and the criminal charges against him were not dismissed until more than a year later.

Mr. Bickford sued. The district court (N.D. Okla.) dismissed. The district court determined that the affidavit's boilerplate paragraphs were false with respect to Mr. Bickford, thereby invalidating the warrant. But the district court found that the deputy nonetheless had probable cause to arrest Mr. Bickford without a warrant for possessing marijuana. This finding was based on the deputy's knowledge of a single Facebook exchange a year earlier between two actual conspiracy members, during which one member stated that he'd given "Chaz" (thought to be Mr. Bickford) a "small dab," and "he got so high."  

The Tenth Circuit reversed in an unpublished order & judgment. This "remotest of evidence" did not provide probable cause to arrest Mr. Bickford for possession:

First, the Facebook message between third-parties constitutes hearsay. Although the fact that hearsay evidence would be inadmissible at trial “does not make it unusable as a source of probable cause for a warrantless arrest” . . . longstanding legal principles generally consider hearsay statements to be inherently unreliable . . . . Second, the Facebook message did not mention Plaintiff by name, but merely referred to someone named “Chaz,” who Deputy Hensley thinks is Plaintiff. The lack of specific  identification of Plaintiff in an uncorroborated conversation that did not even involve Plaintiff further undermines the ability of the message to establish probable cause of any offense.

One last note about Bickford. Oklahoma law generally prohibits warrantless arrests for misdemeanors such as marijuana possession unless they are committed or attempted in the arresting officer's presence. But that state-law fact did not invalidate Mr. Bickford's arrest. State law does not define the contours of the Fourth Amendment. Whether the "in the presence" rule is part of the Fourth Amendment may remain an open question in the Supreme Court, but it was a question that did not need to be answered here in the absence of probable cause.

Competency & interlocutory appeals

A competency determination is a non-final order that may not be interlocutorily appealed. United States v. Perea.

Trial issues

The district court did not err in refusing to instruct the jury on assault resulting in serious bodily injury in this first-degree-murder trial. Neither did it err in its admission of graphic photos. United States v. Oldman (also rejecting arguments regarding ex parte communications with the jury; spousal privilege; and ineffective assistance of counsel).

Sentencing: substantive unreasonableness

This 8-time DWI defendant's 36-month sentence for assault (a DWI accident) resulting in serious bodily injury is not substantively unreasonable. United States v. Miller

Conditions of supervised release

Also in Miller, the Tenth Circuit held that a broad condition of supervision requiring "substance abuse testing" improperly left it up to the probation officer how many substance-abuse tests would be required. This condition conflicted with the language of 18 U.S.C. § 3583(d) (though it was not an unconstitutional delegation): "the district court must set the maximum number of non-treatment-program drug tests to which a defendant may be subjected," and cannot delegate this authority to the probation officer. Here, the district court also failed to make sufficient record findings to support the condition. Unfortunately for Mr. Miller, these errors were unpreserved, and in the end the claims did not satisfy plain-error review. Condition affirmed.

Tenth Circuit Breviaries

Tue, 10/13/2020 - 18:03

Fourth Amendment: warrantless entry into home to arrest

Officers have asked a confidential source to set up a buy from a man they suspect of dealing drugs. The officers decide to approach the man right before the buy and try to "flip" him on a bigger target. Upon seeing the officers, the man flees into his own home. The officers follow. They find the man inside with his arm wet up to the elbow, and a bag of methamphetamine floating in the toilet. They secure consent to search, and seize the bag from the toilet as well as more drugs and guns that they find in the house. Fourth Amendment violation? Nope. Probable cause to arrest + exigent circumstances = constitutional warrantless entry. Here, there were two exigent circumstances: the likelihood that a fleeing drug dealer is about to destroy evidence, and hot pursuit. The case is United States v. Cruz.

Fed. R. Evid. 1002: "best evidence" and transcripts of recordings as substantive evidence

In United States v. Chavez, the Tenth Circuit reversed Mr. Chavez's methamphetamine-distribution convictions because the district court erroneously admitted purported transcripts of recorded Spanish- (and some English-) language conversations for substantive purposes in lieu of (not just in addition to) the recordings themselves. A couple of takeaways:

The phrase "best evidence rule" is "somewhat of a misnomer." The rule isn't about which evidence is qualitatively best or most useful to the jury. Instead, it might be more aptly called the "original document rule."

When a party seeks to prove the contents of a recording via transcripts, the best-evidence rule is triggered, and the party must secure the admission of the original recordings themselves. There is no foreign-language exception to the rule.

Nonconstitutional harmless error

Appellate lawyers should also read Chavez for a deep dive into the government's burden of persuasion on the question of nonconstitutional harmless error. 

Supervised-release condition: possession of sexual materials

The district court plainly erred when it imposed a special condition of supervised release banning this child-pornography defendant from possessing "sexually oriented" or "sexually stimulating" material without first making required findings. United States v. Koch. And footnote: this condition might be unconstitutionally overbroad in any case (though that issue wasn't raised here). See, e.g., Madame Bovary.

Jurors and Social Media

Thu, 10/01/2020 - 09:56

The First Circuit recently vacated the death sentences of Dzhokhar Tsarnaev, the 19-year-old who was convicted of the 2013 Boston Marathon bombings, due in part to juror activity on social media during jury selection. Online comments to and from a juror included:

"If you're really on jury duty, this guys got no shot in hell"

"Shud be crazy [Dzhokhar] was legit like ten feet infront of me today with his 5 or 6 team of lawyers ... can't say much else about it tho ... that's against the rules." 

"Play the part so u get on the jury then send him to jail where he will be taken care of." 

Of course, this juror also told the court during jury selection that his FB friends were not commenting on the trial.

It is difficult to regulate the use of social media. For some people, tweeting is like breathing--they may not always be conscious they are doing it. [Political comment deleted].  In a jury trial, this is a real concern. As Tsarnaev recognized, "jurors who do not take their oaths seriously threaten the very integrity of the judicial process." Social media can be used to research the allegations, to perpetuate inaccurate news reports [second political comment deleted], to reveal juror biases . . . the list goes on. 

Proposed model instructions were recently drafted by the Judicial Conference.  These are much more comprehensive and modern (no references to Blackberries or MySpace) than the 2012 version. The venire is warned, in detail, against communication or research on social media. It also recognizes the compulsion to do so, and that some people will not be able to resist: "If you feel that you cannot do this, then you cannot let yourself become a member of the jury in this case. Is there anyone who will not be able to comply with this restriction?"  

The instructions go so far as to warn about potential on-line manipulation:

Finally, a word about an even newer challenge for trials such as this one–persons, entities, and even foreign governments may seek to manipulate your opinions, or your impartiality during deliberations, using the communications I’ve already discussed or using fake social media accounts. . . . .These communications may be intended to persuade you or your community on an issue, and could influence you in your service as a juror in this case. (emphasis added)

[Third political comment deleted]. The instructions cover jury selection, instructions at the beginning and end of each day, and the close of the case. Jurors are also instructed to inform the court "at the earliest opportunity" if they learn of another juror learning or sharing information outside the courtroom.  

-- Melody 

Tenth Circuit Breviaries

Mon, 09/28/2020 - 12:03

Sentencing: minor role, USSG § 3B1.2(b)

Litigating a minor-role reduction for your client? Read United States v. Delgado-Lopez. There the Tenth Circuit held that a district court considering whether to grant a minor-role reduction should not: (1) speculate about the economics of the drug-trafficking scheme; (2) consider the defendant's refusal to cooperate; or (3) fail to consider the defendant's culpability relative to other participants (unless the only evidence in support of the reduction is the defendant's testimony and the district court properly finds that testimony not credible).

Sentencing: disparities and issue preservation generally

18 U.S.C. § 3553(a)(6) obligates the district court to consider, at sentencing, "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Native Americans convicted of assault in Indian country under the Major Crimes Act face higher sentences under federal law than they would under state law. Because of the Act's conferral of federal jurisdiction over certain crimes within Indian country, the Act disproportionately affects Native Americans. Can a sentencing court consider this disproportionate effect when sentencing a Native American person convicted under the Act?

Nope---at least not under Section 3553(a)(6). So said the Tenth Circuit in United States v. Begay, citing binding Circuit precedent holding that the purpose of Section 3553(a)(6) is to prevent disparities among federal defendants, period.

BUT the Tenth Circuit suggested that the disparity at issue in Begay might be relevant to other sentencing factors, or even the basis for an equal-protection argument. Alas, counsel for Mr. Begay did not sufficiently raise or argue these other bases for considering the disparity in his case. Sentence affirmed.

Sentencing: substantial risk of death or serious bodily injury, § 2K1.4(a)(1)(A)

This guideline requires an actual risk, not just an intended one. But the district court found an actual risk here, and so Mr. Ansberry's base-offense level stands. United States v. Ansberry.

Sentencing: terrorism enhancement, § 3A1.4

"[F]or a § 3A1.4 terrorism enhancement based on the defendant’s retaliation against government conduct to apply, the conduct retaliated against must objectively be government conduct." United States v. Ansberry (emphasis added) (in other words, it is not enough that the defendant subjectively believed the conduct was government conduct).

Sentencing: official victim enhancement, § 3A1.2(a)

This enhancement may only be based on "facts immediately related to the offense of conviction," and not on broader relevant conduct. United States v. Ansberry. The government charged Mr. Ansberry with using or attempting to use a weapon of mass destruction against any person or property. But Mr. Ansberry only pleaded guilty to attempting to use the WMD against property. An offense against government property does not automatically victimize government employees.

How to vote when you are in jail

Thu, 09/24/2020 - 22:22

Happy belated National Voter Registration Day. It’s hard to imagine any election more important than the one that looms just 40 days away. As we all prepare to vote, it’s important to remember that many of our pretrial clients are also eligible and want to vote,* even if in pretrial detention. But the logistics of voting from jail make it tougher for them to do so. You can help by answering their questions and providing the needed forms.

The Kansas FPD is partnering with ACLU of Kansas to get information and materials to potential voters in the jails. We are grateful that many of the Kansas jails, including CoreCivic, Shawnee, Jackson, Sedgwick, Wyandotte, and Butler have agreed to allow Voting Rights flyers (below) to be posted and have let us provide stacks of the forms used to register and to request ballots.

In order to help answer questions from your clients, below is the basic information about who is eligible to vote and when the forms to register and request a ballot must be submitted.

The general eligibility requirements are:

·        U.S. citizen   

·        Kansas resident

·        18 years old on date of the election

·        Completed terms of any felony sentence

·        Not claiming eligibility to vote elsewhere/under another name

·        Not excluded from voting by any court

The deadlines are:

·        Register to vote: postmarked by October 13

·        Request absentee ballot: received by October 27

·        Vote by absentee ballot:  postmarked by November 3

You can find the form to register here and the form to request a ballot here.

Happy voting.

*See Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev., 193, 212–15 (2004) (research links pro-social activities like voting to desistence in crime; individuals interviewed about losing the right to vote express a feeling of being an “outsider” because they cannot vote; and empirical studies show some correlation between voting and lower recidivism). And kudos to Assistant Federal Public Defender Carl Folsom for finding this article and using it in a recent (and successful?) motion for early termination of supervised release.

Torres v. Madrid: What is a seizure?

Tue, 09/22/2020 - 22:02

Even with the uncertainty and acrimony surrounding the nomination of a new Supreme Court justice, one thing is certain: the first Monday in October is upon us, and with it the 2020 term of the Supreme Court. Below we begin a survey of cert grants.

In Torres v. Madrid, the question is this: what qualifies as a seizure under the Fourth Amendment? To resolve an entrenched circuit split, the Court granted cert to determine whether an unsuccessful attempt to use physical force is a seizure.

The question seems somewhat anodyne, but the facts are not. The New Mexico State police went to arrest the plaintiff as she got into her car early one morning. Not realizing it was the police, she believed she was the victim of a carjacking and tried to escape. Police fired some 13 shots as she drove away, striking her twice in her back. Police claimed she was driving toward them, placing them in danger, but trajectory analysis showed all shots were fired from the sides or at the rear of the vehicles. She managed to drive herself to the hospital, where she was later charged and placed under arrest. She pleaded no contest to three felonies, and then sued police for use of excessive force. 

The lower court dismissed, granting qualified immunity to the police, and the Tenth Circuit affirmed. Specifically, the circuit court found that “a suspect’s continued flight after being shot by police negates a Fourth Amendment claim.”In other words, because she did not voluntarily stop for carjackers or because the police did not completely incapacitate her, law enforcement escapes any liability for shooting her in the back.

Even if Ms. Torres prevails on this seizure issue, she will still have to prove that police conduct violated “clearly established” law at the time of the conduct in 2014 to overcome qualified immunity that protects police from the consequences of their misconduct. With the  increasingly loud calls for qualified immunity reform, it will be interesting to see whether the court allows qualified immunity to continue. Justice Sotomayor said in Kisela v. Hughes that qualified immunity “tells officers that they can shoot first and think later,” and "it tells the public that palpably unreasonable conduct will go unpunished.” In this case, law enforcement amici briefs complain about unduly chilling police conduct. The NAACP LDF brief counters, “Today, far too many police officers continue to draw and use guns as a means of unjustified control of African-Americans, rather than for valid law enforcement reasons. The 10th Circuit’s decision leaves these countless people without recourse.” 

The case, originally set March 2020, will be argued October 14, 2020.


Justice Ruth Bader Ginsburg

Mon, 09/21/2020 - 09:01

Thanks to Lindsay Runnels at Morgan Pilate LLC for this guest blog.

 My heart is broken, and I expect yours is, too. Justice Ruth Bader Ginsburg leaves behind an immeasurable legacy and a void so deep which, in this moment, feels overwhelming. 

 I felt a special connection to her even though we never met. Perhaps it is because her pioneering litigation played a defining role in my ability to become a lawyer at all. Where would I be if the law did not permit me to take out loans to pay for law school? Instead, I went to law school without incident and the trajectory of my life, and I expect the lives of many of you, was changed forever. No American was more instrumental in the fight for gender equality or in the defense of reproductive rights. A visionary, she invented an entirely new area of the law based on gender equality. We know it wasn’t just women who benefited, though.  It was single parents, naval cadets, a long-overdue recognition that love is love, her tireless defense of the right to vote, and her strong voice that reminded those with power that the due process clause applies just the same to the powerless. She was a champion for so many. This loss feels personal because it is.

 The leader of the liberal wing of the court became a cultural icon for a reason, I think. The Notorious RBG was known to us. Her idiosyncrasies, her love of opera, the unlikely—though obviously genuine—friendship with Justice Scalia, and the endearing partnership with Marty—it all felt so known and knowable. And it is the personal that made her a brilliant litigator, a force of righteousness on the bench, and a beloved American hero to a broad coalition of Americans from civil rights lawyers to little girls and everyone in between. She knew the law was personal. She understood that what the Court does matters in the everyday lives of Americans because she had once been unseen and unwelcome. Her ability to see the humanity embedded in the legal questions presented to her made her a justice we could rely for an open mind and a fair shake.

 We have studied her briefs and the opinions that lifted and inspired us. And when we lost, we poured over her dissents that mapped out the better way. We never searched long to find the words that connected directly with our own lives. And maybe there lies our heartache. We are familiar. Familiar with the sustained and mounting assault on the rights of the vulnerable, the poor, the disenfranchised, the forgotten. We know how much this fragile moment needs her. She held America to its promise that ‘We the People’ means all the people, and at a time when this promise is tethered by a thread, this wound is deep. 

 The dissenter’s hope, she said, is “that they are writing for tomorrow.” She inspired so many to fight like hell, so that is what we will do. We will continue—armed with her legacy—to hold the constitution to its promise of equal justice for all. May her memory be a blessing. And a revolution. 

Tenth Circuit Breviaries

Wed, 09/09/2020 - 08:41

Recently at the Tenth Circuit:

Fourth Amendment

May officers stop a car for a civil (as opposed to a criminal) traffic infraction? Is probable cause (as opposed to reasonable suspicion) required to support such a stop? Yes, as to the first question; maybe, as to the second. That's my reading of United States v. Meadows. In Meadows, the Tenth Circuit found nothing special about a Utah equipment-violation statute that would take it out of the running for traffic stops: "Because we find that officers may initiate a traffic stop based on probable cause of a Utah equipment violation—even assuming Utah decriminalized that violation—the traffic stop here was reasonable." (Mr. Meadows did not contest the existence of probable cause.) 

If you have been following recent critiques of the qualified-immunity doctrine as applied in civil suits involving police misconduct, take a look at Judge Lucero's dissent from the denial of rehearing en banc in Cox v. Wilson: "Because the panel decision in this case exponentially expands in this circuit the judicially created doctrine of qualified immunity into an all-purpose, no-default, use-atany-time defense against asserted police misconduct, and because it clearly demonstrates so much of what is wrong with qualified immunity, I requested that my colleagues review the panel decision en banc. From the denial of that request, I respectfully dissent" (joined by Judge Phillips).

Using a taser without adequate warning against a misdemeanant who has ceased actively resisting arrest is unreasonable. Emmett v. Armstrong (reversing grant of qualified immunity in excessive-force suit).


In United States v. Mobley, the Tenth Circuit found an international-parental-kidnapping indictment sufficiently specific where it included all elements of the charged offenses, even if it did not include names, locations, or means.

Brandishing a firearm, 18 U.S.C. § 924(c)

Evidence that an accomplice brandished a firearm was sufficient to sustain this aider/abettor's 924(c) conviction. United States v. Bailey.

Extortionate communications & kidnapping, 18 U.S.C. § 875(b)

"Kidnapping" under Section 875(b) does not encompass international parental kidnapping (and threatening that kind of kidnapping therefore cannot serve as the basis for an extortionate-communications conviction). So said the Tenth Circuit in Mobley. Read Mobley for a history of federal kidnapping statutes from baby Lindbergh to the present.

Judicial recusal, 28 U.S.C. § 455

In Mobley, the Tenth Circuit also held that the sentencing judge's email to the defendant's mother about sentencing did not require recusal.

Sentencing: Use of violence, USSG 2D1.1(d)(2)

In United States v. Zuarte-Suarez, two out of three Tenth Circuit panel judges agreed in an unpublished order and judgment that the district court did not plainly err when it enhanced Ms. Zuarte-Suarez's methamphetamine-trafficking sentence for use-of-violence. Judge Phillips published his dissent "because of the importance of relevant conduct in federal sentencings and the need for rulings explaining how it works. Unwarranted Guidelines enhancements lead to unwarranted prison time." Read both opinions in Zuarte-Suarez for competing views of what evidence and intent are necessary to establish this enhancement.

Restitution, 18 U.S.C. § 3663

No restitution was authorized in Mobley for the father's attorney's fees incurred in an effort to retrieve his children from Russia: "Section 3663 delineates specific authorizations for restitution orders and the one relied on here, subsection (b)(4), is not met by expenses that are merely 'related to' the offense. More is required: the expenses must be 'related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense[.]' § 3663(b)(4) (emphasis added)."

Criminal forfeiture

"[A] district court may base a judgment’s forfeiture amount on the value of the fraudulently obtained merchandise at the time a defendant acquired it. We further hold that a district court may not reduce or eliminate criminal forfeiture because of restitution. Finally, we reaffirm our holding that in personam money judgments representing the amount of unlawful proceeds are appropriate under the criminal forfeiture statutes." United States v. Channon.

Sex-offender registration

The Colorado Sex Offender Registration Act does not violate the Eighth Amendment or substantive due process as applied to the plaintiffs in Millard v. Camper (and the district court erred in holding otherwise).

First Step Act & Fair Sentencing Act

Read United States v. Mannie if you haven't already, and if you are representing anyone on a First Step Act motion or appeal involving the retroactive application of the Fair Sentencing Act. In Mannie, the Tenth Circuit addresses eligibility (it has nothing to do with the guidelines calculation), the right to a hearing (it's discretionary), and the standard of review on appeal (abuse of discretion).

"It is a capital mistake to theorize before one has data"

Sun, 08/30/2020 - 17:26

Sherlock Homes was right. And now the Sentencing Commission's Interactive Data Analyzer is here to give you data you need to advise your client, negotiate with the prosecutor, and persuade the court.

Let's look at some data snapshots from Kansas federal cases.

Question: What percentage of Hispanic defendants convicted of firearms offenses receive a below-guideline sentence in the District of Kansas?

Answer: In FY 2019, 26.7% of defendants, down from 52% in FY 2018.

Question: What is the median sentence for robbery defendants in the District of Kansas?

Answer: 71 months.

Question: Do Black defendants in Criminal History Category III receive more sentences in excess of 120 months for drug trafficking than white defendants in the same category in the District of Kansas?

Answer: Significantly so: 37% of Black defendants versus 17.6% of white defendants.

Black defendants:

White defendants:

Whoa, how did you do that? Especially with the cool graphics?

We didn't. The Sentencing Commission did. When you go to the data analyzer tool, you can filter data by fiscal year, circuit, district, race, gender, age, citizenship, education, crime type, and criminal history category. It's easy; no algorithms or programming, just drop-down menus.

A couple of tabs to note, to help you navigate:

Click on the sentencing outcomes tab, and you can sort by plea status, sentence type, and sentence length.

Click on the guideline application tab, and you can see how sentences are imposed relative to the guideline range and the defendant’s criminal history, and generate heat maps pegged to the sentencing table. Remember that every time you perform a new search, you’ll need to clear all of your filters. There’s a handy button to do just that in each date box.

The Interactive Data Analyzer is a terrific tool to support your arguments that a proposed plea agreement or variance accords with district, circuit, or national practice. Go to the site, play around, and learn a really useful and creative new way to advocate for your clients.

---Kirk Redmond

Restoration of Voting Rights

Mon, 08/17/2020 - 17:00
In countless change-of-plea hearings, judges have told my clients that the conviction they are about to receive will cost them their right to vote, the right to hold public office, and the right to serve on a jury. At this point in the plea colloquy, I sometimes whisper in the client’s ear and remind them that “you should get those rights back once you’re off paper." Many of my clients are surprised when I tell them that they will likely be able to vote once their supervision is over. Here in Kansas, a felony conviction leads to a temporary loss of the right to vote. Kansas law automatically restores voting rights to persons with felony convictions once they have completed the terms of the sentence (including any supervision). Under K.S.A. 21-6613, a person with a felony conviction gets the restoration of their right to vote, to hold public office, and to serve on a jury once they complete the terms of their sentence. So the person is free to register to vote as soon as their supervision is complete. So it is across the state line in Missouri. Under Mo. Ann. Stat. §§ 115.133(2) & 561.026(1), a person convicted of a felony is generally unable to vote until they are finished with any term of incarceration or probation or parole. But after the terms of the sentence are completed, the right to vote is restored. (Although it appears that a felony conviction will forever disqualify a person in Missouri from serving on a jury. Mo. Ann. Stat. § 561.026(3)). The restoration of rights is something to keep in mind when advising clients about the collateral consequences of any felony conviction in federal court. You should advise clients that they will lose their right to vote (and to hold public office and to serve on a jury) with their conviction. But the loss of these civil liberties is usually temporary. Once the client finishes the terms of their sentence, they will again be eligible to vote if they live in Kansas or Missouri (or in many other states). -Carl Folsom

Tenth Circuit Breviaries

Sun, 08/16/2020 - 16:36

Fourth Amendment

In United States v. Moses, the Tenth Circuit held that the district court did not err when it denied Mr. Moses's request for a Franks hearing. The video footage he claimed was recklessly omitted from law enforcement's search warrant affidavit was not materially exculpatory, that is, its inclusion would not have negated probable cause. As the Tenth Circuit reiterated in Moses, "a district court is not required to draw all logically permissible inferences favorable to a defendant seeking a Franks hearing."

Double jeopardy

This Mexican-American-border "gatekeeper" for a drug trafficking organization could be prosecuted for two separate conspiracies in two separate federal district courts consistent with the double jeopardy clause. United States v. Mier-Carces. Read the treatise-length Mier-Carces decision if you want to know more about how to determine whether two conspiracies are interdependent for purposes of conducting a double jeopardy analysis.

Sentencing: aggravating role, USSG 3B1.1

In United States v. Gehrmann, the Tenth Circuit held that a doctor convicted of a tax-fraud conspiracy was an organizer under USSG 3B1.1(c), rejecting his arguments to the contrary. Control is not necessary to qualify as an organizer, and the fact that Dr. Gehrmann was just as responsible as another doctor did not matter. Rather, what mattered was that they were both more responsible than a third doctor. Multiple people can qualify as a leader or organizer.

Sentencing: maintaining a drug premises, USSG 2D1.1(b)(12)

Mr. Mier-Garces's "regular and repeated" use of his home for drug trafficking gave the district court ample basis to apply a sentencing enhancement for maintaining a drug premises--whether he also lived in the home or not. United States v. Mier-Carces.

Sentencing/924(c): predicate offenses

Assault with a dangerous weapon under 18 U.S.C. 113(a)(3) is a crime of violence under 18 U.S.C. 924(c)'s "elements clause." United States v. Muskett. And the Tenth Circuit officially adopts (at least in this opinion) the phrase "elements clause" to refer to what some of us call the "force clause." Id. at 2 n.1. Now you know.

In United States v. Lozado, the Tenth Circuit held that the district court should have granted Mr. Lozado's Section 2255 petition and vacated his ACCA sentence. That sentence was based on prior Colorado state convictions that no longer qualify as valid ACCA predicates: a juvenile conviction for second-degree assault with a deadly weapon; an adult conviction for second-degree burglary of a building; and an adult robbery conviction.

In Johnson v. Barr, the Tenth Circuit held that Colorado possession of hydrocodone is not a predicate drug offense for removal purposes. Pair this case with the Tenth Circuit's recent decision in United States v. Cantu for a well-rounded understanding of how divisibility works when analyzing state drug statutes for predicate purposes.

Appeals: plain error

Appellate lawyers should read Gehrmann for the discussion between the majority and the dissent about how prong 3 of plain-error review should work (at least in an appeal challenging the district court's imposition of a guidelines enhancement). And district court lawyers should continue to preserve their claims so that their appellate colleagues won't have to suffer plain-error review.

The Bus Project

Fri, 08/14/2020 - 20:09

Holistic public defense means, in part, learning about the challenges our clients face every day, and then figuring out how to help. It may be an isolated act or it may involve writing new policy. Or changing the law, as Carl Folsom did for his client. These challenges may have introduced our clients into the criminal legal system. Or keep them trapped in the carceral bureaucracy. We want to help them rise above.

 In our office, we have Google-ish projects. Spend some of your work time on an idea that is not necessarily case-centered, but that will help educate, build, or solve. FPD Investigator Cecilia Wood created her Bus Project. For anyone who has participated in our PovertySimulation (another Google-ish project), you know that transportation is one of the biggest challenges for someone who is poor. Lack of ready transportation makes it difficult to find and keep work. To honor supervised release obligations. To just live.

Cecilia wanted to learn more about what our clients do to just get around town. She described her Bus Project for NPR's En Route. Take a listen. (starts at 3:55).

 As Dan said today, “ride on.”

-- Melody 

Post-graduate legal fellowship, Fall 2021

Tue, 08/11/2020 - 10:57

Our office is excited to begin a new effort to work with post-graduate fellows to establish innovative, holistic, client-centered criminal justice initiatives in the District of Kansas. We invite applications from candidates for post-graduate legal fellowships who are interested in having the Kansas Federal Public Defender Office as a host organization. We are looking forward to working with candidates to build off of their experience, interests, and talents to design projects that will help our clients and the community. We seek collaboration with candidates who have a vision that will provide a new approach to the multi-faceted challenges that our clients face and generate change toward a more just Kansas.

Application details are found here.

Two judicial views of the "two Americas"

Thu, 07/30/2020 - 12:37
This post is long but worth it, as are the various opinions written by the judges in United States v. Curry. The question to be resolved by the en banc Fourth Circuit was straightforward: did exigent circumstances justify the suspicionless stop and search of Bill Curry? But the resulting opinions are an evaluation of predictive policing, its effectiveness, and its racism.

A short summary of the facts: Four officers responded to gunshots heard near a public housing community in Richmond, Virginia. They drove to a nearby field where they saw several black men walking away, including Bill Curry. An officer stopped Curry, told him to put his hands up, demanded that he lift his shirt, then eventually restrained and searched him, revealing a firearm. Curry moved to suppress the firearm.

The government admitted that the officers did not have reasonable suspicion to stop Curry, but argued that exigent circumstances allowed the stop and search. Under this theory, officers could have stopped and searched anyone in the vicinity because they were investigating the gunshots. The Fourth Circuit rejected this argument. In the context of an investigatory stop of a person, the court limited the exigent-circumstances exception to situations where officers have identified a discrete group or area, and then engaged in minimally intrusive searches in the immediate aftermath of a known crime. Here, none of those requirements were met.

Judge Wilkinson's dissent starts thus: "We face again in this day of sad and unhappy truths the divide between what are already two Americas.” But the two Americas of Judge Wilkinson's view are one "where citizens possess the means to hire private security or move to safer neighborhoods" and a second where "crime moves to fill the vacuum left by the progressive disablement of the law's protections." Judge Wilkinson warns that the majority opinion signals the end of "predictive policing," which uses "big data and machine learning" to "identify likely areas of crime" and "stop criminal offenses before they occur."

Chief Judge Gregory pens one of the three concurrences, focusing mainly on responding to Judge Wilkinson. Chief Judge Gregory writes that Judge Wilkinson's "recognition of a divided America is merely a preamble to the fallacy-laden exegesis of 'predictive policing' that follows.” He describes the over-policing of minority communities, and cites Frederick Douglass and James Baldwin to note the “long history of black and brown communities feeling unsafe in police presence.” He writes that “we know that many of our fellow citizens already feel insecure regardless of their location. In a society where some are considered dangerous even when they are in their living rooms eating ice cream, asleep in their beds, playing in the park, standing in the pulpit of their church, birdwatching, exercising in public, or walking home from a trip to the store to purchase a bag of Skittles, it is still within their own communities—even those deemed ‘dispossessed’ or ‘disadvantaged’—that they feel the most secure.” Chief Judge Gregory argues that communities should not be forced to make the false choice to either give up constitutional protections against suspicionless searches seizures or forego governmental protection entirely. 
Chief Judge Gregory argues that the important point is not the strategies police officers use to decide how and where to deploy their resources, but "how they, upon arrival, engage with the people in those neighborhoods." He suggests no "tough on crime" or "smart on crime" approach will work without engagement with the community. Curry and others tried to point the officers toward the location of the gunshots but the officers were “aggressive, discourteous, and ineffective.” They “ignored the assistance and the shooter got away.”

Tenth Circuit Breviaries

Sun, 07/19/2020 - 17:00
Fourth Amendment

In United States v. Cortez, the Tenth Circuit held that officer questioning did not unreasonably delay a traffic stop, and that the development of reasonable suspicion justified further questioning and detention until Border Control arrived.

On the way to that holding, the Court reminded us that district courts should not evaluate suppression claims "in the light most favorable to the government." Rather, they "must assess the credibility of witnesses and determine the weight to give to the evidence presented; the inferences the district court draws from that evidence and testimony are entirely within its discretion." 

Fifth Amendment/Miranda

Also in Cortez, the Tenth Circuit reconfirmed that no Miranda warnings are necessary before officer questioning during an ordinary traffic stop.

Previously, in Tenth Circuit Breviaries

If you missed last week's Breviaries, you can read them here.

Police-Prosecutor Codependence

Mon, 07/13/2020 - 21:31
As we debate police accountability, let's remember this is just one front in the fight. Police often escape consequences because they are protected by prosecutors who, in turn, have little to no accountability. The Washington Post ran an opinion piece by D.C. public defender Rachel Cicurel, Don’t stop with the police: Check racism in the prosecutor’s office. She reviews widely substantiated statistical evidence of prosecutorial bias against people of color and recounts her experience in the courtroom as "prosecutors fight to keep officers’ misconduct secret after they’ve unconstitutionally targeted, stopped and searched a person of color." She offers another painfully familiar refrain: "I’ve listened to prosecutors absurdly claim that a chronically ill black man was as likely to contract covid-19 at home as he was inside a crowded, filthy jail." She closes with a call for prosecutorial accountability. While they hide behind policy, practice, and management, "the truth is: They do have a choice."
Prosecutors often choose to protect police. They fight against disclosing Giglio information. If they lose the fight, they ask for protective orders that preclude the defense from using information in other cases. They invoke the heavy burden of Armstrong to deter discovery of racially discriminatory policing and prosecutorial practices, such as stash house sting operations. They invoke the good-faith doctrine to save bad searches that targeted people of color. And the list goes on. Yet prosecutors are rarely called out for perpetuating the  misconduct.  
Understanding the myriad reasons that prosecutors choose to protect police is the first step toward reform. To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 BULR 895 (2020), looks to legal precedent and social sciences to show "the persistent, codependent relationship between police and prosecutors exacerbates police misconduct and violence and is aided by prosecutors in both legal and extralegal ways." While suggesting policy and legislative reforms, the article does not contemplate defense initiatives. 
That is our responsibility. One place to begin is systematic Giglio litigation tied to faithful collection, tracking, and publication of impeachment information.  Meaningful data is a powerful tool for change.    
Want to read more? Here you go: Jonathan Abel, Brady’s Blind Spot:Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stanford Law Review 743 (2015). 
Let's get to work.
-- Melody

Tenth Circuit Breviaries

Mon, 07/13/2020 - 10:01
ICE holds & pretrial release

The Bail Reform Act does not preclude removal under the Immigration and Nationality Act. And "the government does not need to make a choice between a criminal prosecution or removal." Thus, a district court that releases a person before trial in a criminal case is not required (or, it seems, even authorized) to order ICE not to remove that person during the period of pretrial release. So said the Tenth Circuit in United States v. Barrera-Landa.

Fourth Amendment

Anthony Kapinski shot and killed two other men during a fracas in a crowded parking lot, and then fled. The investigating detective interviewed eyewitnesses and reviewed surveillance videos of the event. The detective secured a warrant for Mr. Kapinski's arrest by way of an affidavit that did not mention the surveillance videos. Those videos ultimately supported Mr. Kapinski's claim of self defense, and he was acquitted at trial. He sued the detective and the city for false arrest and malicious prosecution. The district court granted the detective summary judgment. Mr. Kapinski appealed.

The Tenth Circuit affirmed in Kapinski v. City of Albuquerque. The Court held that the detective's omission of any mention of the videos in the search-warrant affidavit was not material. Even with the videos, the affidavit provided probable cause. And there was insufficient evidence that the omission was reckless, especially in light of the detective's inclusion of other self-defense-supporting facts in the affidavit.


In United States v. Wyatt, the Tenth Circuit reversed Mr. Wyatt's two convictions for conspiracy to sell guns without a license, because the district court failed to instruct the jury that any conspiracy had to be wilful, that is, that the conspirators had to know that what they had agreed to do was unlawful. But the Court rejected Mr. Wyatt's argument that the evidence was insufficient to prove the charged conspiracies.

ACCA predicate offenses

In United States v. Cantu, the Tenth Circuit held that Mr. Cantu's prior convictions for Oklahoma drug offenses were not ACCA predicates. This was because Oklahoma defines "controlled dangerous substances" more broadly than the ACCA defines controlled substances. The Tenth Circuit rejected the government's argument that the Oklahoma statute is divisible as to each controlled substance. The takeaway? First, read Cantu to learn how divisibility works. Second, always review the statutes underlying your client's prior drug convictions. If, at the time of your client's prior offense, those statutes covered drugs not covered by federal law, you may have a good argument that your client's prior conviction is not a sentence-enhancement predicate.