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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger688125
Updated: 1 hour 39 min ago

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).

Indictments

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.

Conspiracy

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.

Which gun with which offense?

Thu, 07/09/2020 - 16:08
A person convicted of a drug crime with a mandatory minimum is eligible for the safety valve--and thus freed from the mandatory minimum--if, among other requirements, he did not "possess a firearm or other dangerous weapon. . . in connection with the offense." 18 U.S.C. § 3553(f). In United States v. Hodgkiss, the Eighth Circuit held that “the offense” strictly means the offense of conviction, and does not include relevant conduct. In Hodgkiss, the defendant pleaded guilty to a drug-trafficking offense in April 2018 that did not involve a gun, and also pleaded to possessing a weapon during a different drug-trafficking offense two months later. The court held that the defendant did not possess the gun in connection with the April 2018 drug-trafficking offense he was convicted of, even if both episodes were part of the same relevant conduct for sentencing guideline purposes.

Although it doesn't appear that the Tenth Circuit has addressed this statutory-interpretation question directly, this holding is consistent with what the Tenth Circuit has said. For example, in United States v. Hargrove, 911 F.3d 1306, 1328 (10th Cir. 2019), the court emphasized that for the safety-valve requirements, possession of a weapon does not include a codefendant's weapon, and means an "active possession whereby there is a close connection linking the individual defendant, the weapon and the offense.”  

"The Constitution is a GLORIOUS LIBERTY DOCUMENT"

Thu, 07/02/2020 - 12:38

In honor of Independence Day, we offer the words of Frederick Douglass, excerpted from his 1852 speech to the Rochester Ladies' Anti-Slavery Society: "What To The Slave Is The Fourth Of July?"
Feeling themselves harshly and unjustly treated by the home government, your fathers, like men of honesty, and men of spirit, earnestly sought redress. They petitioned and remonstrated; they did so in a decorous, respectful, and loyal manner. Their conduct was wholly unexceptionable. This, however, did not answer the purpose. They saw themselves treated with sovereign indifference, coldness and scorn. Yet they persevered. They were not the men to look back.As the sheet anchor takes a firmer hold, when the ship is tossed by the storm, so did the cause of your fathers grow stronger, as it breasted the chilling blasts of kingly displeasure. The greatest and best of British statesmen admitted its justice, and the loftiest eloquence of the British Senate came to its support. But, with that blindness which seems to be the unvarying characteristic of tyrants, since Pharaoh and his hosts were drowned in the Red Sea, the British Government persisted in the exactions complained of.The madness of this course, we believe, is admitted now, even by England; but we  fear the lesson is wholly lost on our present ruler.* * *What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour. * * *Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution. In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.
Read the entire speech here. And have a safe holiday.

Judicial endorsement of police "experts"

Tue, 06/30/2020 - 18:09
When are police officers "experts," and what message does their designation as experts send to the jury?

In United States v. Cristerna-Gonzalez, the Tenth Circuit clarified the law governing “expert” testimony by the police.

First, the Court clarified the boundary between “Opinion Testimony by Lay Witnesses,” Fed. R. Evid. 701, and “Testimony by Expert Witnesses,” Fed. R. Evid. 702. The lay opinion rule “does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness.” This means that “knowledge derived from previous professional experience falls squarely within the scope of Rule 702 [governing expert testimony] and thus by definition outside of Rule 701 [lay opinion testimony].” In the context of police testimony purporting to interpret drug code language, “testimony based on knowledge derived from the investigation of the case at hand is typically regarded as lay testimony, opinion testimony premised on the officer’s professional experience as a whole is expert testimony.” Although not addressed in Cristerna-Gonzalez, the lay/expert boundary is crucial because it determines whether a summary of expert testimony must be provided and whether Daubert is implicated.
Second, citing a federal rules of evidence treatise and the ABA’s Civil Trial Standards, the Cristerna-Gonzalez panel signaled its disapproval of the common prosecution tactic of causing the trial judge to endorse a witness as an “expert” in front of the jury. The panel cited particularly helpful language from the comment to the relevant ABA Civil Trial Standard:[T]here is no need for the court to announce to the jury that it has found that a witness is an expert or that expert testimony will be permitted. The use of the term “expert” may appear to a jury to be a kind of judicial imprimatur that favors the witness. Because expert testimony is not entitled to greater weight than other testimony, the practice of securing what may appear to be a judicial endorsement is undesirable.The takeaway?
1. Object at trial to expert testimony from police officers if the government did not comply with the notice requirements of Rule 16 or any pretrial scheduling order.
2. Has there been notice? Before trial, challenge the officer's qualifications and the basis for his or her proposed testimony (is it really based on sufficient facts or data?). In other words, put the government through its Rule 702/Daubert paces.
3. Did you lose that challenge? Move the district court in limine to prevent the government from seeking to have the court endorse the officer as an "expert" in front of the jury.
--Tom Bartee

Tenth Circuit Breviaries

Sun, 06/28/2020 - 18:38
Fourth Amendment

In Hinkle v. Beckham County, Oklahoma, the Tenth Circuit held that an officer had probable cause to arrest based on information that the person arrested owned (or had a connection with) a trailer that had been reported stolen. It did not matter that the person informed the officer that the information was mistaken---"a soon-to-be-arrestee's bare proclamations of innocence" do not dissipate probable cause.

But the arrestee's body-cavity strip search upon admission into the jail was unreasonable under the Fourth Amendment. There was no justification at the time of the search--that is, no decision had been made that the arrestee would be placed in the jail's general population (in fact, he was placed in segregation), and there was no cause to believe that he was concealing evidence of a crime.

Evidentiary Issues

In United States v. Cristerna-Gonzalez, the Tenth Circuit affirmed Mr. Cristerna-Gonzalez's drug convictions, finding no reversible error in (1) the unobjected-to admission of expert law-enforcement testimony (no plain-error); (2) the unobjected-to admission of modus-operandi evidence consistent with Fed. R. Evid. 404(b) (no error, much less plain error); or (3) the admission over objection of irrelevant and prejudicial testimony suggesting a connection between this case and a notorious drug cartel (this was error, but it was harmless).

Sentencing: Procedural & Substantive Reasonableness

In United States v. Pena, a carjacking/gun/methamphetamine case, the Tenth Circuit affirmed an upward-departure sentence of 360 months' imprisonment--more than twice the high end of Mr. Pena's guidelines range. The district court addressed the statutory factors and adequately explained the sentence.

Dig. Dig deeper.

Thu, 06/25/2020 - 16:51
Racial profiling. Excessive force. On the street, police misconduct looks obvious. In the courtroom, it's a different matter. How do we go about proving an officer's race-based motivation, or a police department's take-no-prisoners culture? There are loose lips and smoking guns out there. If we just dig deeply enough, we might find, for instance, that the department's training materials include this image (small print above image: "protecting and serving the POOP out of you"):

Or we might find that the department's training materials include---grossly-out-of-context---a link to a Chris Rock comedy routine replete with fake and real video clips of police officers beating Black people, including Rodney King.

That evidence came to light in the excessive-force case Wright v. City of Euclid.

Is the Euclid Police Department unique? I doubt it. If we look a little harder, what else might we find?

Remember, for instance, Foster v. Chatman, in which a state open-records request yielded documentary evidence that the prosecutors' peremptory strikes of Black prospective jurors at Timothy Foster's capital-murder trial were racially motivated.

Evidence is out there. We are unlikely to get it through criminal discovery. So let's put on our investigator pants and get to work.

The Doctrine of Chances and Rule 404(b)

Tue, 06/23/2020 - 19:06
While driving drunk in the wrong lane of a highway inside the Ute Mountain Ute Reservation, Timothy Merritt struck an oncoming car, killing one of that car’s passengers and injuring another. A jury convicted him of second-degree-murder and assault.

On appeal, the Tenth Circuit approved the admission at Merritt’s trial of three other DUI-related acts. Two of the other acts were prior convictions. The third was a drunk-driving arrest that occurred while Merritt was on bond in the federal case.
The Tenth Circuit reasoned that other acts tended to prove that Merritt had the requisite awareness of the serious risk of harm associated with drunk driving, rendering his decision to drive reckless and wanton, thereby supporting a finding of malice aforethought. The Tenth Circuit rejected Merritt’s argument that driving drunk does not evince an awareness of the riskiness but rather suggests the opposite.
In assessing the admissibility of the drunk driving incident while on bond, the Tenth Circuit considered the government’s argument that the similarity of that incident to the charged crime implicated the “doctrine of chances.” Under this doctrine, the similarity of the charged conduct to other conduct increases the likelihood that the incidents are not innocent random events. After seemingly signaling that the doctrine might apply, the Court decided not to decide, reasoning that any error in the admission of the evidence was harmless.
Applying the doctrine of chances to prove mens reais fraught with the danger that the jury will misuse the other-crimes evidence. As with other-crimes evidence generally, the problem is one of dual relevance: the evidence supports the improper inference of bad character as well as the proper inference of intent. The improper chain of inference, prohibited by FRE 404(b), has two steps. Step One involves inferring from a past crime that the defendant has a bad character. Of course, this inference is itself empirically weak. Beyond that, the inference creates the risk that the jury might convict just to punish the defendant for her criminal past. Step Two involves inferring from this bad character that the defendant must be guilty. This creates the risk that the jury will overvalue the bad character evidence, failing to recognize that bad character is empirically a poor predictor of behavior on a particular occasion.
When used to prove the actus reus (as opposed to the mens rea) of a crime, the doctrine of chances does not necessarily implicate character concerns. A classic use of the doctrine is to prove that an initially unexplained death that is discovered to be similar to other deaths associated with the defendant was actually a homicide. The warrant for this inference is that common sense tells us that these similar deaths are very unlikely to represent mere coincidences. This use of the doctrine certainly implies the defendant’s bad character, but that implication is a side effect, not a necessary link in the inferential chain. But when the doctrine of chances is ostensibly used to prove mens rea, the close connection between a person’s intent and their character makes it unlikely that a lay jury could follow a limiting instruction—even crafting an intelligible instruction conveying this distinction would be difficult. If nothing else, Merritt at least flags the issue, allowing defense lawyers to anticipate and prepare to battle its use.
---Tom Bartee

Tenth Circuit Breviaries

Sun, 06/21/2020 - 16:48
Fourth Amendment (traffic stop)

The 15 minutes it took an officer to gather information from the El Paso Intelligence Center (EPIC) did not unreasonably extend a traffic stop where the parties agreed that the officer had reasonable suspicion of drug trafficking. So concluded the Tenth Circuit in United States v. Morales, reversing the district court's suppression order.

Fifth Amendment (confessions)

An FBI agent interviewed Shane Young in a county jail. The agent showed Mr. Young a federal warrant for his arrest and said "I'm on your side." The agent proceeded to advise Mr. Young that he had talked to the judge who had reviewed the case, and that Mr. Young could "buy down" his time with the judge by giving information. The agent also misadvised Mr. Young about the amount of time he was facing. These were false representations of law and fact that rendered Mr. Young's resulting statements involuntary, and the district court should have granted his motion to suppress. United States v. Young.

Sixth Amendment (counsel)

A mid-trial waiver of the right to counsel was not made knowingly and intelligently in United States v. Hamett. The district court (1) failed to discuss the the charges with Mr. Hamett and refused to give him time to review the elements as set out in the jury instructions before he decided to waive counsel; (2) incorrectly advised Mr. Hamett that he was facing up to 20 years' imprisonment, when in fact one charge against him carried a maximum of life imprisonment; and (3) failed to apprise Mr. Hamett of any possible defenses.

Fed. R. Evid. 404(b)

In United States v. Merritt, a DUI-based second-degree murder case, the Tenth Circuit approved the admission of other DUI-related incidents at trial. We will blog about this case in more detail later this week.

Collateral Estoppel

In 2016, in United States v. Arterbury, a district court in Oklahoma suppressed child pornography seized as a result of the PlayPen NIT warrant, finding that the warrant was void ab initio, and therefore Leon's good-faith exception did not apply. The government appealed, but then dismissed its appeal and asked the district court to dismiss the indictment against Mr. Arterbury without prejudice. The district court granted the motion.

Fast forward to 2017 and United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), an appeal from the district court of Colorado. There the Tenth Circuit held that Leon's good-faith exception applied to the execution of the same PlayPen NIT warrant.

In 2018, the government secured a second indictment against Mr. Arterbury based on the same evidence as the first indictment. Mr. Arterbury moved the district court to enforce its original suppression order. The district court denied the motion; Mr. Arterbury entered a conditional plea and appealed.

In 2020, the Tenth Circuit held that the district court erred in declining to enforce its original suppression order, because Mr. Arterbury had "established the elements of federal criminal collateral estoppel under the common law." The what elements under the what law? Read Arterbury for a primer on the difference between collateral estoppel based on double jeopardy/due process, and collateral estoppel based on the federal common law.

Rethinking traffic stops

Thu, 06/11/2020 - 18:35
Whether you're a pedestrian stopped for walking in the street, a bicyclist stopped for riding on the sidewalk, or a driver stopped for anything from a busted taillight to speeding, traffic stops can be annoying. Or frightening. Or deadly.
Why does this keep happening?
Criminal law: the stinginess of the exclusionary rule
The exclusionary rule was designed to deter police misconduct during traffic stops and otherwise. It's a start. But it will never be enough, for a host of reasons, including the fact that the rule is defined by judges and justices who are far removed from the reality of the streets. See Hudson v. Michigan, 547 U.S. 586, 599 (2006) (expansion of exclusionary rule not necessary to deter violations of knock-and-announce rule because "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously").
Civil law: qualified immunity
In Hudson, Justice Scalia cheerfully assured us that the exclusionary rule did not need to be expanded because, "[a]s far as we know, civil liability is an effective deterrent" to police misconduct. Id. at 598.
Earlier this week, the Fourth Circuit put the lie to that nonsense in a decision decrying how perverted the qualified-immunity doctrine has become:Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.Estate of Jones by Jones v. City of Martinsburg, W. Va, ___ F.3d ___, 2020 WL 3067925 (4th Cir. June 9, 2020).

Rethinking the law: eliminate traffic enforcement
As dewy-eyed lawyers, we want to believe that the courts and the constitution can remedy police violence. But maybe it's time to think beyond the courtroom walls. Can safe streets and sidewalks be achieved without the intervention of armed, militarized agents of the state? Talk amongst yourselves. And check out these statements from the Minneapolis group Our Streets Minneapolis, and the national group Safe Routes Partnership.

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