Kansas Federal Public Defender's Blog
There's a new rule in town worth getting to know. Amendments to Federal Rule of Evidence 404(b) came into effect on December 1, 2020. The new rule eliminates the need to request notice; obligates the government to articulate the purpose of the evidence noticed; and obligates the government to put its notice in writing. No more can the government claim that you got notice via evidence buried somewhere in a discovery dump. Here are the changes:
Be sure to check out the robust Advisory Committee Notes to the amendment. You can review those and other historical materials here.
Mr. Denezpi entered an Alford plea in the Court of Indian Offenses to assaulting VY, and served an approximately 5-month prison sentence. Based on the same conduct, Mr. Denezpi was later charged and convicted in federal court of aggravated sexual abuse, and sentenced to 360 months in prison.
This second proceeding did not violate the Fifth Amendment's Double Jeopardy clause, held the Tenth Circuit in United States v. Denezpi. Courts of Indian Offenses function as tribal courts and are therefore inherently sovereign courts (despite the fact that they operate under federal regulations). And, as the Supreme Court reiterated last year in Gamble, under the dual-sovereignty doctrine, separate sovereigns may each prosecute and punish a person for the same conduct ("the same offence") without offending the Double Jeopardy clause.
Conspiracies and variances
"When an indictment charges a single overarching conspiracy, but the government only proves several smaller conspiracies, a variance occurs." The question then becomes whether that variance is fatal. Read United States v. Sanchez to learn more about the controlling factors in this analysis.
Sentencing guidelines: analogous offenses
For offenses not listed in the Statutory Index of the Sentencing Guidelines, the "most analogous guideline" must be used. USSG 1B1.2; 2X5.1. In United States v. Clark, the district court determined that there was no analogous guideline for Ms. Clark's offense of child neglect in Indian country. The Tenth Circuit affirmed that determination by categorically comparing the offense elements (not the underlying conduct) to potentially analogous guideline provisions and finding no satisfactory match.
Absent any analogous guideline, Ms. Clark's sentence was solely governed under the Major Crimes Act in accordance with Oklahoma law, which authorized a sentence from 1 year in jail up to life in prison. Given this broad range, and the absence of any analogous guideline to anchor the district court's sentencing decision, the district court plainly erred by not adequately explaining its imposition of an 84-month prison sentence.
Supervised release: reimposing special conditions
Does a district court have to make findings or give reasons for reimposing a special condition of supervised release? Maybe? But also maybe not. You'll have to make an objection to find out. That's what the defendant learned in United States v. Henry, when the Tenth Circuit held that even if the district court's reimposition of special conditions (after a revocation) without individualized reasons was error, it was not plain error.
Law of the case/the mandate rule
When the Tenth Circuit says something, it means it, and the district court is bound by that decision on remand. In United States v. Dutch, the Tenth Circuit allowed that "we are not infallible and we do not always address an issue as full as the district court might hope in our mandates." But even then, the district court is not in a position to "correct" a Tenth Circuit decision:Even if the prior panel had erred, the extent of a district court’s discretion on remand is not determined by our fallibility or the district court’s satisfaction with our explanation. The court’s discretion on remand is determined by the limitations expressly imposed on it by our mandate. This court need not plumb the depths and details of an issue to preclude further argument about it on remand.
On those occasions, hopefully few and far between, when this court is wrong or unclear, the district courts are not in the position to engage in error correction on remand. We have processes in place to ensure parties can have errors corrected: petitions for panel rehearings, rehearings en banc, and writs of certiorari to the United States Supreme Court. Dutch pursued these processes following Dutch I to no avail. If the mandate rule means anything, it must mean that a district court cannot disregard a specific mandate on remand because it disagrees with it or thinks it insufficiently explained.
A Wyandotte County judge Thursday vacated the 2009 murder conviction of Olin “Pete” Coones, who says he was framed in a double shooting that was actually a murder-suicide.
After more than 12 years behind bars, Coones left the courthouse a free man.
The Wyandotte County District Attorney’s Office moved to drop the charges against Coones, now 63, after the judge found Coones received an unfair trial in the 2008 shooting deaths of Kathleen and Carl Schroll.
It is a complicated story, one expertly told in the beautifully written petition. Really, here is the opening paragraph:Kathleen Schroll’s last scheme was her most ambitious one. Granted, her first one netted her around $30,000 in cash, a house, and a $46,000 life-insurance policy. And her second one, requiring her to falsify bank records, paid her about $11,000. But with her last scheme, Kathleen aimed to steal someone’s life.
In sum, prosecutors withheld exculpatory evidence, ignored alibi evidence, withheld information from the medical examiner, and sponsored an untrustworthy jailhouse snitch to convict Mr. Coones. The prosecution was led by WyCo assistant prosecutor Edmund “Ed” Brancart, under then-WyCo DA Jerome Gorman. The MIP explains the case more fully here.
This was the first case to go through Wyandotte County's Conviction Integrity Unit, under the supervision of current WyCo District Attorney Mark Dupree.
The winning team. Our best to Mr. Coones and his family.
Just so you know you have options:
Voters can visit the 2020 Elections Hub on the ACLU of Kansas at http://aclukansas.org where they can find voting rights training videos and so much more!
Fourth AmendmentRemember 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.
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.
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.
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.
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.