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Criminal Law

Tenth Circuit Blog

Commentary and summaries of cases before the Denver-based 10th U.S. Circuit Court of Appeals.
By Shari Allison

Post Frequency: 2.7/day

Last Entry: August 28, 2020 at 17:58:00

Prisoner's Civil Rights Action Alleging False Imprisonment Reinstated

Posted on October 20, 2010
Cohen v. Longshore, ___ F.3d ___ , 2010 WL xxx (10th Cir. 2010) (CO) (No. 09-1563)The district court abused its discretion in dismissing plaintiff?s civil rights complaint for false imprisonment and denying extension of time to amend when the court failed to consider the plaintiff?s reasons for delay, which were all outside of Plaintiff?s control, including serious medical conditions...

Drug Dog's Romping Through Car Not a Constitutional Violation

Posted on October 19, 2010
U.S. v. Lujan, No. 09-2193 & 09-2194 (10/12/10) (N.M.) (unpub'd) - It was not a 4th Amendment violation when a drug dog leaped into a car through an open front passenger door and then into the back seat and then back out towards the open door and then alerted to the floor board...

Petitioner's Guilty Plea Was Involuntary Where Based on False Promise of 3-Year Side Deal

Posted on October 19, 2010
Tovar Mendoza v. Hatch, 2010 WL 3965209 (10/12/10) (Published) - A wonderful victory in a habeas case. The 10th held that the petitioner's guilty plea was rendered involuntary by a promise by his attorney that he would get a 3-year sentence because the attorney had worked out a side deal with the judge...

Circuit Snippets

Posted on October 15, 2010
It is constitutional to require persons accused of federal felonies to give a DNA sample as a condition of granting bail, the Ninth Circuit held. The Court found it was reasonable because the sample was only demanded after a judge had determined that there is probable cause to support the charges...

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Relief Granted to 2255 Petitioner Who Did Not Receive Effective Assistance of Counsel in Sentencing Process

Posted on October 07, 2010
US v. Washington, 2010 WL 3786159 (Kan), 9/30/10 - Denial of 2255 petition reversed. Defendant was represented in this crack distribution case by attorney who knew nothing about how federal sentencing works. Defendant was convicted at trial of three sales involving a total of 61...

Unpublished Decisions

Posted on October 07, 2010
U.S. v. Williams, 2010 WL 3733883 (9/27/10) (Colo) (unpub'd) - It was okay for an officer to identify the defendant as the person in the "less-than-perfect" video destroying a trail sign in a national forest. The officer had seen her 6 times over the course of 3 years, including a couple of heated meetings discussing her opposition to people traipsing over property that she had mineral rights in...

Izzo v. Wiley, _ F.3d _ ,

Posted on September 29, 2010
Izzo v. Wiley, ___ F.3d ___ , 2010 WL 3758717 (10th Cir. 2010) In a denial of a � 2241 petition, the Tenth Circuit determines under plain language analysis that the BOP reading of the Second Chance Act was correct, and that eligibility for the Elderly Home Detention Pilot Program comes only after serving 75% of the sentence imposed, rather than 75% of the sentence that has been reduced by good time credit...

Pew Report Documents Collateral Costs of Incarceration on Offenders, Families

Posted on September 29, 2010
A press release from the Pew Center on the States says:Washington, D.C. - 09/28/2010 - Incarceration reduces former inmates? earnings by 40 percent and limits their future economic mobility, according to a new Pew report, Collateral Costs: Incarceration?s Effect on Economic Mobility...

Prosecution Misconduct

Posted on September 23, 2010
USA Today begins an investigative series on prosecution misconduct in federal cases today.http://www.usatoday.com/news/washington/judicial/methodology-federal-prosecutor-misconduct.htmhttp://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N...

More Unpublished Decisions

Posted on September 22, 2010
U.S. v. Carbajal-Moreno, 2010 WL 3548490 (9/14/10) (unpub'd) - Counsel was not per se ineffective just because he was disbarred at the time of the trial. Counsel is only per se ineffective when counsel never was licensed to practice law.Castillo-Torres v...

Comments on Local Rules Changes Solicited

Posted on September 20, 2010
A memorandum from the Tenth Circuit states:"On December 1, 2010, changes to Federal Rules of Appellate Procedure 1, 4, and 29 will take effect. For more specific details, including committee notes and information, please see uscourts.gov/rules. Effective January 1, 2011, the United States Court of Appeals for the Tenth Circuit will issue new local rules to accompany the federal rules changes...

Unpublished Decisions

Posted on September 20, 2010
U.S. v. Owens, 2010 WL 3516710 (9/10/10) (Okl) (unpub'd) - The d. ct. erred when it applied the guideline range for a Grade B supervised release violation where the defendant's violation consisted only of committing a misdemeanor DWI---a Grade C violation...

Contempt Order Based on Repeated Derogatory Emails to Judge Upheld

Posted on September 20, 2010
Nickerson v. United States, No. 09-2255, 2010 WL 3511257 (September 9. 2010) (unpublished): pro se appeal of an order from the US District Court for New Mexico finding Mr. Nickerson in contempt and ordering him to pay $300 as a sanction for violating a previous court order...

Rancher Who Sold Cattle that were Security for Loans Convicted of Bank Fraud

Posted on September 20, 2010
United States v. Bowling, ___ F.3d ___ , 2010 WL 3547710 (10th Cir. 2010) (Ok). Cattle rancher loses his appeal on bank fraud convictions. He had taken out loans over the years to run his cattle operation, secured by cattle, equipment, and land, ran a line of credit and, with the bank?s knowledge, generally did not comply with agreements to give notice to the bank whenever he sold any cattle...

Circuit Snippets

Posted on September 13, 2010
US v. Lanham, No. 08-6504 (6th Cir. 8/24/10): Even though the guidelines are now advisory, ex post facto concerns support applying the guidelines in effect at the time of the offense rather than at the time of sentencing if the later guidelines are harsher, the Sixth Circuit said...

Sufficient Evidence Supported Bank Robbery Conviction

Posted on September 10, 2010
US v. Wakefield, 09-4133, 2010 WL ------, (10th Cir. 8/12/10)Defendant convicted of aiding and abetting bank robbery appealed, claiming insufficient evidence. There was more than enough evidence to support the conviction where Wakefield (who had long hair) was on video buying a BB gun; an hour later, a bank was robbed and the robber got into a van driven by someone with long hair; an officer pulled over a van matching the description; Wakefield was driving the van and the passenger had hundred-dollar bills with fresh dye in his pocket; there was a BB gun in the van; and records from Wakefield's cell phone followed the course of action in the robbery.

Mail, Wire Fraud Convictions Based on "Reasonably Foreseeable" Use of Mails, Internet, Affirmed

Posted on September 10, 2010
United States v. Weiss, ___ F.3d ___ , 2010 WL XXX (10th Cir. 2010) (Colo). Previously unpublished case. In mail and wire fraud convictions for bogus home loan schemes, defendant was properly charged with mail fraud because the mailings were reasonably foreseeable, even if he did not perform the actual mailings...

Qualified Immunity Decision Reversed in Civil Rights Case

Posted on September 10, 2010
Lundstrom v. Romero, ___ F.3d ___ , 2010 WL 3222048 (10th Cir. 2010) (NM). Court reverses qualified immunity decision in favor of Albuquerque Police Department, finding that no reasonable officer would have determined that there was reasonable suspicion/probable cause to conduct the seizure/search they did, under the facts in the case...

Meth Defendant's Arguments Rejected

Posted on September 10, 2010
United States v. Hood, ___ F.3d ___ , 2010 WL 3227820 (10th Cir. 2010) (Utah). Convicted after trial of possession with intent to distribute more than 50 grams of meth, and sentenced to life imprisonment, the defendant raised three arguments to no avail...

Protective Orders, Assault Conviction Excluded

Posted on September 10, 2010
Therrien v. Target Corporation, 2010 WL 3095233 (8/9/10) (Okl) (Published) - It may be of some use in combating the admission of prior bad act evidence that in this case the 10th affirmed the exclusion of evidence of protective orders issued against the plaintiff and one conviction for misdemeanor assault...

Officers Lacked Probable Cause to Arrest Plaintiff for "Disorderly Conduct"

Posted on September 10, 2010
Stearns v. Clarkson, 2010 WL 3191511 (8/13/10) (Kan) (Published) - The prosecutor and officers did not have a reasonable belief that probable cause existed to arrest the plaintiff for disorderly conduct for either of 2 instances: (1) the plaintiff, whose father had been killed by local law enforcement officers, knocked on the front door of an officer's home at 12:30 a...

Establishment Clause Violated by Cross Memorials on Public Land with Public Insignia

Posted on September 10, 2010
American Atheists v. Duncan, No. 08-4061 (10th Cir. August 18, 2010): The Utah State Highway Patrol Association obtained the permission of Utah state authorities to place 12-foot high crosses, with the official UHP emblem, on public land to memorialize fallen Utah Highway Patrol troopers...

Attorney-Client Privilege and Grand Jury Investigations Addressed

Posted on September 10, 2010
In re Grand Jury Proceedings, Nos. 09-2062/09-2068 and 09-2209/09-2228, 2010 WL 3258616, (Court publishes two decisions previously issued under seal and now with redactions.) 09-2209/09-2228Appellee (a company?) was investigated for making misrepresentations on federal forms...

Unpublished Decisions

Posted on September 10, 2010
U.S. v. Pinon-Ayon, 2010 WL 3277644 (8/20/10) (Wyo) (unpub'd) - The 10th grants the government's unopposed motion to vacate the sentence and remand for resentencing because the district court did not make specific and independent findings required to justify an obstruction of justice enhancement...

A couple of 10th Circuit cases

Posted on August 11, 2010
A couple of 10th Circuit cases and S. Ct. news. First, the 10th:Dodds v. Richardson, 2010 WL 3064002 (8/6/10) (Okl) (Published) - The 10th affirms a denial of qualified immunity in the context of a summary judgment where the sheriff had a policy of refusing to allow a person arrested for a felony to post bond until the arrestee was arraigned...

PublishedUS v. Mullins and US v.

Posted on August 11, 2010
PublishedUS v. Mullins and US v. Edwards, 2010 WL 2947873 (Colo), 7/29/10 - Convictions and sentence on wire fraud and related charges affirmed. Defendants were real estate agents in Denver who were part of a scheme to defraud the Federal Housing Administration by obtaining mortgages based on bogus documentation...

No 4th Amendment Seizure Where Civil Rights Plaintiff Fled; No Malicious Prosecution Where Evidence Supported Gun Charge

Posted on August 11, 2010
Brooks v. Gaenzle, ___ F.3d ___ , 2010 WL XXX, No. 09-1489 (10th Cir. 2010) (CO). In this 42 USC � 1983 Civil Rights case, the court upholds the district court?s grant of summary judgment to the defendant cops/law enforcement entities on the petitioner?s Fourth Amendment claims of unreasonable use of force and malicious prosecution, and denies pendent jurisdiction on related state tort claims, reversing the district court on the state claims and dismissing them without prejudice...

Successive 2241 Petitions Not Subject to AEDPA's Prior Authorization Requirement

Posted on August 11, 2010
Stanko v. Davis, ___ F.3d ___ , 2010 WL XXX, No. 09-1073 (10th Cir. 2010) (CO)Habeas arcania. There are two kinds of federal habes?28 USC � 2241, the traditional habeas petition, and 28 USC � 2255?a motion to vacate etc. a sentence. The ability to file second or successive habeas actions is closely regulated...

U.S. v. Hasan, 2010 WL 2510727

Posted on August 04, 2010
U.S. v. Hasan, 2010 WL 2510727 (6/23/10) (Okl.) (Published) - After a prior remand from the 10th, the d. ct. failed to apply the proper law in determining whether the grand jury proceedings complied with the Court Interpreters Act ("CIA"). The d.ct. mistakenly focused on the defendant 's communication with his employers, students and wife in English, when the question under the CIA is whether he spoke primarily a language other than English, in this case, Somali...

Guilty Plea Not Involuntary Despite Erroneous Info

Posted on August 04, 2010
Platta v. Janecka, 2010 WL 2812834 (7/19/10) (unpub'd) - It was not enough to establish the petitioner's guilty plea was involuntary or unintelligent when he alleged counsel told him that under New Mexico law he would get 50 % off for good time when in fact he only got 15 % off for good time.

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