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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger688125
Updated: 35 min 27 sec ago

Tenth Circuit Breviaries

Sun, 06/07/2020 - 17:27
Fourth Amendment

While an officer may ask a passenger for identification during a traffic stop, the passenger's failure or refusal to provide it does not establish probable cause for an arrest. This point of law is clearly established in the Tenth Circuit. And thus the district court properly denied an arresting officer qualified immunity in Corona v. Aguilar.

A district court must not "view the evidence in the light most favorable to the government" when deciding a motion to suppress. Rather, it must "assess the credibility of witnesses and determine the weight to give the evidence presented." So the Tenth Circuit reminded district courts in United States v. Goebel.

In Goebel, the Tenth Circuit also held that a police officer had reasonable suspicion to detain Mr. Goebel based on a combination of factors (that you can read for yourselves), and that the detention was not unreasonably prolonged. Nor was any delay causally linked to the officer's discovery of evidence. 

Fifth Amendment

A brief conversation on a public sidewalk between the officer and Mr. Goebel while Mr. Goebel was detained was not a custodial interrogation for Miranda purposes. And Mr. Goebel's other statements were Mirandized, knowing, and voluntary (and not incriminating in any event).

Rehaif

No plain error in United States v. Trujillo, where the district court accepted Mr. Trujillo's 18 U.S.C. § 922(g) guilty plea without advising him that he was required to know he was a felon to be convicted. This was not structural error (the Tenth Circuit disagrees with the Fourth Circuit here), and Mr. Trujillo failed to show (under the third plain-error prong) that absent the error, he would not have entered the plea (given his 6 prior felonies and 4 prior years in prison). And even if he had met that prong, he would lose under the fourth prong: "Where the evidence of Defendant's knowledge of his felony status is 'overwhelming and uncontroverted,' the real threat to the 'fairness, integrity, and public reputation of judicial proceedings' would be if Defendant were permitted to withdraw from a plea unequivocally supported by the facts and for which Defendant has no defense."

Sentencing: substantive reasonableness

In United States v. Sandoval, the Tenth Circuit rejected Mr. Sandoval's claim that his 27-month within-guideline prison sentence for assault was substantively unreasonable. More specifically, the Circuit held that USSG  § 2A2.2, the assault guideline, is not manifestly unreasonable because it does not distinguish between intentional and reckless conduct. Nor was a downward variance required by the fact that Mr. Sandoval's adjusted offense level for a reckless assault was only one level below the base offense level for involuntary manslaughter. 

A Police State in America?

Thu, 06/04/2020 - 21:18
The Insurrection Act of 1807. The Anti Riot Act of 1968. What are these tools, and when can our government use them against us, the people?

In an opinion piece today in the New York Times, Federal Public Defenders Lisa Lorish and Juval Scott trace the history of these provisions and warn us about their reach. AG Barr has threatened to criminally charge protesters under the Anti Riot Act---a law that one district court has found substantially infringes on the constitutional rights to free speech and free assembly. Take heed, defenders, and get ready.

Joint Statement From the Federal Defenders on the Killing of George Floyd

Wed, 06/03/2020 - 20:03
The moral arc of the universe, as Dr. Martin Luther King Jr. said, bends towards justice. And yet, we all saw that arc snap again under a police officer’s white knee on George Floyd’s Black neck for eight minutes and forty-six seconds. That knee has been placed on too many Black necks before and too often without repercussions.

This time must be different. While we can kneel in solidarity with Mr. Floyd, we also must stand up and demand that racism, overt and implicit, be acknowledged and confronted.
As federal public and community defenders, we represent the overwhelming majority of those charged with crimes in federal court, most of whom are minorities, of all colors and orientations. We have witnessed “wars” on drugs and crime become dog whistles for hate and racism. Intentions to make communities safe are hijacked by other insidious agendas. The war on crime is a new Jim Crow that permeates our criminal justice system. Daily, we see charges that are too harsh, sentences that are too long, and a system that turns a blind eye to oppressive structural racism because it seems to fear “too much justice.”
George Floyd died face down, gasping and begging to breathe. It is well beyond time for us all to say, “Enough.”
We are better than this; we can be just and empathetic. We can do what is right and what is moral. We can keep communities safe by holding out our hand to help, aware of our own failings and biases.
And in this crucible of anger, we take a breath, and begin to repair the moral arc and bend it back towards justice.
As federal defenders, we stand with many like George Floyd who have been held down and denied their humanity. It is our job, our calling. It is our privilege. For George Floyd and all of our clients, we renew our longstanding commitment to fight daily for equal justice.
* * * * *
Read the statement with signatures on fd.org here.

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