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Kirk Redmondhttp://www.blogger.com/profile/05149425706408433721noreply@blogger.comBlogger619125
Updated: 1 hour 14 min ago

"May it please the Court"

Wed, 09/25/2019 - 07:23
Good morning, Your Honors, my name is ___, attorney for ___.

May I proceed, Your Honor? My name is ___, and I represent ___.

Good morning Your Honors and counsel, [name] from ___, appearing for ___.

Thank you, Your Honors, may it please the Court, my name is ___, appearing on behalf of ___.

Thank you Your Honor and may it please the Court, [name], for the appellants here.

Thank you, Your Honors, good morning, may it please the Court, counsel, my name is ___, and I'm appearing on behalf of appellant ___.

May it please the Court, good morning.


These are just a few of the introductions made by litigants before oral argument to the Tenth Circuit this month. How do you introduce yourself to the Court? Do you invoke the traditional phrase "May it please the Court"? Do you acknowledge counsel on the other side? Do you state your name and who you represent? The Tenth Circuit's Practitioner's Guide does not require any particular greeting, but it does instruct counsel that, "[a]t the beginning of the argument, counsel should identify themselves to the court."

The Supreme Court takes the opposite approach. Its Guide for Counsel instructs that after the Chief Justice has recognized you by name, "you may acknowledge the Court by the usual: 'Mr. Chief Justice and may it please the Court. . . .' Do not introduce yourself or co-counsel." The "may" makes the greeting sound optional, but Supreme Court practitioners use it with near uniformity.

Whether you use that traditional greeting in the Tenth Circuit or other courts is up to you. Judges who have addressed the issue say it doesn't hurt, and it may be a useful icebreaker. Two pieces of advice: make it short (you don't want to waste valuable argument time on an introduction), and know what you're going to say ahead of time so that you don't hem and haw during your very first statements to the Court.

Tenth Circuit Breviaries

Sun, 09/22/2019 - 16:47
Last week at the Tenth Circuit:

Sentencing enhancements

Want to preserve an objection to a sentencing enhancement? Object to the PSR's application of the enhancement. Object to the PSR's factfinding in support of the enhancement. Be specific. Restate the objection to both the factual findings and the legal conclusion with specificity at sentencing. Do not rely on government concessions in the plea agreement. These are the lessons of United States v. McClaflin, affirming the district court's independent factfinding (based on sworn victim statements), and imposition of a 6-level enhancement under USSG § 2B1.1 for substantial financial hardship to more than 25 victims.


In McClaflin, the Tenth Circuit also held that the district court did not abuse its discretion when it refused to continue the defendant's sentencing hearing.

Sex offenses

In United States v. A.S., the Tenth Circuit tackled the interplay of Fed. R. Evid. 412 (governing admissibility of a victim's prior sexual behavior), Fed. R. Evid. 608 (limiting admission of specific instances of conduct), and the Sixth Amendment right of confrontation, finding no error in the district court's rulings in that case, and affirming A.S.'s sexual-assault conviction.

In a footnote, the Court observed that Rule 412 only applies to evidence being offered for specific purposes, and that it might not apply to evidence of prior false accusations (citing, among other sources, the Rule's advisory notes). The Court did not need to reach that question in A.S.

In A.S., the Tenth Circuit also examined at length sentencing under the Federal Juvenile Delinquency Act, rejecting the view (held by the Ninth Circuit) that juvenile sentences must be the least restrictive means of achieving rehabilitation and addressing the needs of the community. Read A.S. if you've got a juvenile client facing federal sentencing.

28 U.S.C. § 2255; ineffective assistance of counsel; Brady

In United States v. Holloway, the Tenth Circuit rejected the defendant's arguments that (1) he experienced a total breakdown with counsel resulting in ineffective assistance of counsel (breakdown not established under Romero factors); (2) his counsel ineffectively failed to object to a sentencing enhancement (objection not a clear winner and could have prejudiced Holloway); and (3) the government suppressed exculpatory evidence (exculpatory nature of evidence merely speculative--Holloway failed to seek discovery of it in his 2255 proceedings).

Playpen dissent: good faith doesn't apply where agents "deliberately or recklessly misled the magistrate"

Thu, 09/19/2019 - 15:00
The majority opinion in United States v. Taylor, out of the 11th Circuit, joins a chorus. It finds that a warrant related to the Playpen child-pornography investigation exceeded the magistrate judge’s jurisdiction under Federal Rule of Criminal Procedure 41(b) (since amended), but declines to suppress any evidence under the good-faith exception to the exclusionary rule. Ten other courts of appeal have reached a similar result. The notable part is Judge Tjoflat's dissent, which concludes that the good-faith exception cannot apply because the FBI agents "deliberately or recklessly misled the magistrate" in the warrant application.

If you’re not familiar with the investigation, Playpen was a child-pornography-distribution site. The FBI arrested the site administrator then covertly continued operating the site from a server in Virginia. To snare users, the FBI employed the Network Investigative Technique, or “NIT,” malware. The malware piggybacked on downloads from the site, invaded the host computer, and forced the computer to send its IP address and other information back to the FBI. The FBI could then identify the user. To deploy the NIT via the Playpen site, FBI agents submitted a search-warrant application to a magistrate judge in the Eastern District of Virginia. The warrant authorized transmission of the NIT from the site, which would then conduct digital searches of each user's computer.

The dissent concludes that the officers knew or should have known of a jurisdictional problem with the warrant, which sought to conduct searches in dozens of districts outside the judge's authority. But the warrant application falsely and repeatedly told the magistrate judge that the searches would take place in the district and "buried" the implication that most searches would in fact occur in other districts. Because the agents at least recklessly misled the magistrate judge by obfuscating the jurisdictional issue, the dissent would not apply good faith. The majority's approach, says the dissent, "essentially gives officials permission to try to hoodwink magistrates: they can make false statements to the court so long as they include enough information to uncover their chicanery. If the magistrate fails to spot the issue, officials can cloak themselves in good faith reliance and execute the warrant without fear of suppression."

Multiple Playpen cases are pending or probably will be pending on petitions for certiorari to the Supreme Court. Will one judge’s dissent persuade the Court that eleven circuits have gotten this wrong?

Tenth Circuit Breviaries

Sun, 09/15/2019 - 15:00
Last week at the Tenth Circuit:

"Take prescribed medication as directed"

This stock condition of supervised release got the axe last week from the Tenth Circuit in United States v. Malone:

We consequently take this opportunity to make it clear that this condition, on its face, is an impermissible infringement into a defendant’s significant liberty interests without the justifying support of particularized findings. * * * Probation offices and courts in this circuit must be precise and discerning in their imposition of such conditions and may only include a broad mandate to ‘take prescribed medication as directed’ when it is accompanied by particularized findings that justify it.Multiplicity of child-pornography charges

In United States v. Elliott, the Tenth Circuit held that 18 U.S.C. § 2252A(a)(5)(B) (the child-pornography statute) precludes “distinct charges for each electronic device or medium simultaneously possessed.” In other words, five charges for possessing child pornography on five devices, in the same place, at the same time, violates the rule against multiplicity. For purposes of this analysis, possession of a Dropbox account is treated as found not where Dropbox’s servers are located, but “in the same location as the device from which it is accessed.”

Officer testimony about pretextual stops leads to suppression

Thu, 09/12/2019 - 16:00
The lesson from the suppression order in United States v. Coleman, No. 2:18-cr-00219, 2019 WL 4262506 (D. Nev. Sept. 9, 2019) might be: put the officer on the stand. In this case, the officer testified about his unit's practice of using traffic stops to search suspected gang members.

Officers from the Las Vegas "violent crime" or "vc" unit stopped Coleman for driving with high beams on. Officer Ostorga got his identification, asked about his criminal history (prior convictions for robbery, battery and weapons possession), and asked him about gang affiliation. Ostorga remarked that "I am just going to keep asking you until you tell me." Coleman said he had previously been a member of a gang. The officers found no outstanding warrants but did discover that Coleman was on federal supervised release. They decided to contact the probation officer to see if they could get permission to search the car, which was apparently not successful. After remarking that he was not concerned about his safety, Ostorga ordered Coleman out of the car anyway. He frisked Coleman and found nothing. He ordered Coleman to stand in front of the patrol car and visibly inspected Coleman's car with a flashlight, and found nothing. He then asked "Be cool if I search it?" and Coleman did not respond. Ostorga asked again "What's up? You okay if I search it?" Coleman said yes. Eventually Ostorga removed a panel from interior and found a handgun.

The district court suppressed the gun. The court found that Ostorga impermissibly extended the traffic stop by ordering Coleman out of the car, not for any safety reason or traffic-stop purpose, but to continue to search for drugs or guns. In fact, the court noted, searching the car was the officer's purpose from the beginning of the stop, consistent with the vc unit's use of traffic stops for "proactively searching for guns, drugs, and other gang-related contraband." The court also found that the consent was not voluntary, since Coleman had been frisked and searched, was out of his car with his hands on the hood of the patrol car, the officers retained his identification, and Ostorga asked twice for permission after Coleman tried to avoid responding.

Evidence suppressed.

Tenth Circuit Breviaries

Sun, 09/08/2019 - 15:00
Last week at the Tenth Circuit:

Fourth Amendment: reasonable mistake of law

In United States v. Romero, the Tenth Circuit held that a police officer did not have probable cause to arrest Mr. Romero for obstructing an officer under a state law, as that law has been interpreted by the courts.

The Tenth Circuit further held that any mistake of law by the arresting officer was unreasonable. A couple of highlights:

First, recall that the Supreme Court held that reasonable suspicion may rest on a mistake of law in Heien v. North Carolina. As the Tenth Circuit pointed out in Romero, the Tenth Circuit has yet to decide whether Heien applies to probable-cause determinations (the Court merely assumed this point without deciding it in Romero).

Second, an officer's mistake of law must be reasonable. Here, the law at issue had been interpreted several times, and the officer could not have reasonably mistaken it as applicable to Mr. Romero's conduct.

Jury instructions on lesser-included-offenses

In United States v. Antonio, the Tenth Circuit found no error in the district court's step-down instructions to only consider involuntary manslaughter if the jury did not unanimously find the defendant guilty of second-degree murder.

And the Tenth Circuit found no error in the district court's refusal to instruct the jury to consider “the boundary which separates the two crimes of murder and manslaughter.”

 Magistrates: authority to accept guilty pleas?

The Tenth Circuit has long held that "federal magistrate judges can accept and enter guilty pleas in criminal proceedings where the parties have consented to appearing before the magistrate judge." But other circuits disagree when it comes to felony pleas, and for good reasons. In United States v. Garcia, Chief Judge Tymkovich, writing for the panel majority, acknowledged those reasons and rang the certiorari bell: "Regardless of how we, as a circuit, continue to handle these matters, the Supreme Court will have the final word." Stay tuned . . . .

Indian Country

Want to learn more about subject matter jurisdiction and Indian Country? Read United States v. Antonio (finding evidence of territorial jurisdiction sufficient, and no procedural error).

Crimes of violence; 18 U.S.C. § 924(c); 28 U.S.C. §2255 timeliness; actual innocence

From United States v. Bowen:

"In short, we hold that United States v. Davis, 139 S. Ct. 2319 (2019), in which the Supreme Court held that 18 U.S.C. § 924(c)(3)(B) is void for vagueness, created a new substantive rule that is retroactively applicable on collateral review, and we conclude that Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A). Therefore, Bowen is actually innocent of 18 U.S.C. § 924(c)(1). The parties have agreed in this case that, if Bowen is actually innocent, his § 2255 motion is timely. Because Bowen is entitled to relief under § 2255, we REVERSE the district court’s dismissal of Bowen’s § 2255 motion and REMAND with instructions to VACATE his § 924(c)(1) conviction."

Tenth Circuit Breviaries

Mon, 09/02/2019 - 10:15
Last week at the Tenth Circuit:

A sentence increase after the defendant complains

In United States v. Wallace (unpublished), the district court sentenced Mr. Wallace to 6 months' imprisonment for supervised release violations, saying, "I'm looking forward to when you get out because I want to see what you can do." Mr. Wallace interrupted (more than once) as the court continued, and complained that the court was setting him up for failure. The district court warned: "we can revisit my sentence"; Mr. Wallace replied: "let's revisit it." The district court took a 10-minute recess and came back and resentenced Mr. Wallace to 10 months' imprisonment.

On appeal, counsel filed an Anders brief and the Tenth Circuit held that (1) the district court did not lose jurisdiction over Mr. Wallace's sentence between the time of its initial announcement and its revised announcement; and (2) "[w]e see no reason to interpret the within-guidelines sentence as a punishment for interrupting instead of a reasonable sentence in line with the government’s recommendation." Appeal dismissed.

USSG § 2G1.1(b)(1) (4-level enhancement for coercive behavior)

"[F]or the purpose of applying Guideline § 2G1.1(b)(1), the defendant must have coerced the Victim as part of the offense, and . . . the language 'occurs as part of the offense' includes any conduct for which the defendant is accountable under Guideline § 1B1.3 (Relevant Conduct)." United States v. Sweargin.

The right to a § 2255 hearing to prove counsel's failure to consult about an appeal

In United States v. Herring, the Tenth Circuit held that the district court erred in denying, without an evidentiary hearing, Mr. Herring's claim that his trial counsel's failure to consult with Mr. Herring about an appeal constituted ineffective assistance of counsel.

Mr. Herring alleged that when he told counsel that he was interested in appealing, counsel responded that he (counsel) did not do appellate work, and that Mr. Herring would have to find new counsel. If true, this would be deficient performance:

"Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case."

Case remanded for an evidentiary hearing.

A complicated § 2254 case

Read Harmon v. Sharp (affirming denial of § 2254 relief in Oklahoma capital case) to learn more about:

  • State procedural bars/cause & prejudice (especially out of Oklahoma).
  • "Separate counsel" for purposes of raising an IAC claim.
  • De novo review in § 2254 cases.
  • Cumulative error.
See also the concurring opinions for an interesting discussion of waiver/no-review versus forfeiture/plain-error-review in AEDPA appeals.

D.C. Circuit to government: if you want to use the witness's statements, don't deport the witness

Thu, 08/29/2019 - 18:38
Before the government may present an absent witness's testimonial statements at trial, it must make two independent showings: (1) unavailability, and (2) a prior opportunity for confrontation.

In United States v. Burden, the government failed to show that a witness the government had deposed and then deported was unavailable:

"In a case such as this one, in which the government knew or should have known of the potential need for the witness’s testimony before he was deported, the government’s duty to make good-faith, reasonable efforts to ensure the witness’s presence arises before the witness leaves the United States."

* * * "Before his deportation, the government did not give Yindeear-Rom a subpoena, offer to permit and pay for him either to remain in the U.S. or to return here from Thailand, obtain his commitment to appear, confirm his contact information, or take any other measures."

So sayeth the D.C. Circuit. Conviction reversed.

Tenth Circuit Breviaries

Sun, 08/25/2019 - 18:31
Last week at the Tenth Circuit . . .

Haymond remedy

18 U.S.C. ' 3583(k) provides for mandatory revocation and enhanced prison terms for sex offenders who violate the terms of their supervised release. The statute's provisions are triggered by judicial (not jury) factfinding by a preponderance of evidence (not evidence beyond a reasonable doubt). We now know that these provisions are unconstitutional. That's what the Supreme Court told us earlier this summer when it decided United States v. Haymond. But what's the remedy for this problem? Is it to strike that portion of the statute, nixing the enhancement entirely? Or to hold a jury trial if the government wishes to pursue the enhancement? And what would that jury trial look like? The Supreme Court sent the case back to the Tenth Circuit to decide the remedy question.

Last week, the Tenth Circuit decided not to decide the remedy question . . . at least not in Mr. Haymond's case. And that's because (1) the government waived any claim that a jury trial is authorized and would remedy the statute's constitutional problems; and (2) any remedy is now moot as to Mr. Haymond, who was already resentenced to time served.

And so. Going forward. Object to the enhancement, and argue that the only plausible remedy is to strike that portion of the statute. There are no jury-trial provisions in Section 3583 or anywhere else for revocations of supervised release. The enhancement is not enforceable.

Materiality of false statements

A veteran's lies to the VA in an effort to get undeserved benefits are material where they may be (even if they're not) the sole basis for an eligibility finding. And thus the Tenth Circuit affirmed the defendant's false-statements conviction in United States v. Williams.

In Williams, the Tenth Circuit reminds us that "[a]false statement can be material regardless of its influence on the decisionmaker and can also be material even if the decisionmaker had already arrived at her conclusion before the statement is made."

FRE 404(b) evidence v. "intrinsic" evidence v. FRE 403

The Williams Court held that Mr. Williams's prior false statements were admissible as "intrinsic to the charge," and therefore their admission was not limited by Fed. R. Evid. 404(b). But the Court also noted that even intrinsic evidence may be excluded "if it upsets the balancing test of Rule 403."

Preservation of objections

More from Williams: Once the trial court definitively ruled on defense counsel's motion in limine before trial, counsel was not required to re-raise the objections in that motion at trial. But counsel may only be relieved of the contemporaneous-objection requirement when the issue at hand is (1) fairly presented pretrial; (2) capable of a final decision pretrial; and (3) ruled on unequivocally by the judge.

D. Kan. Judge: Statute criminalizing encouraging unlawful alien is unconstitutionally overbroad

Thu, 08/22/2019 - 13:04
8 U.S.C. § 1324(a)(1)(A)(iv) provides criminal penalties for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”

Last December, the Ninth Circuit held this section unconstitutionally overbroad in violation of the First Amendment because it criminalizes a substantial amount of protected expression, including “a loving grandmother who urges her grandson to overstay his visa.” United States v. Sineneng-Smith, 910 F.3d 461, 483 (9th Cir. 2019) (cert. pet. filed 07/12/2019).The Tenth Circuit has yet to address this section. But this week, D. Kan. Judge Murguia relied on Sineneng-Smith to vacate two jury convictions under this section. United States v. Hernandez-Calvillo, D. Kan. No. 16-cr-20097-05 (Order of Dismissal filed 08/21/19); United States v. Papalotzi, D. Kan. No. 16-cr-20097-06 (same).The government may well appeal. In the meantime, if your client has been charged under this section, move to dismiss, and consider moving to vacate any already-entered plea.

Tenth Circuit Breviaries

Sun, 08/18/2019 - 16:13
Conditions of Release

A special condition of supervised release granting authority to the probation officer to decide whether and when the defendant may use computers and internet-access devices is impermissibly broad and an abuse of discretion in United States v. Blair
Civil Rights

Prosecutors are not absolutely immune from liability for fabricating evidence during the preliminary investigation of a crime. For more information, and a fascinating (if disturbing) account of a wrongful conviction, read Bledsoe v. Vanderbilt.