Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Defendant Ronald Ullmann pled guilty to making a false statement. The charge arose from sexually explicit written conversations between Ullmann and an undercover FBI agent posing online as a thirteen-year-old minor. Ullmann was sentenced to 60 months in prison and three years of supervised release. The district court imposed twelve conditions of supervised release which restricted Internet use. When Ullmann was released from prison, the special conditions took effect. Shortly thereafter, however, the U.S. Probation Office filed a motion to modify the conditions of his supervised release, claiming technological advances necessitated the modifications. The modifications replaced the twelve conditions restricting Internet use with a single condition. Although the language of the modified condition stated that it authorized “restrictions and/or prohibitions” on the use of the Internet and Internet-capable devices, the Probation Office’s manual acknowledged that “Tenth Circuit case law did not allow for an absolute restriction from computer access, except possibly in the most extreme case. . . . Offenders are permitted to use a computer and access the Internet, with the clear understanding that their computer activities are being monitored.” Ullmann had no objection to continued restrictions and monitoring. Instead, he narrowly objected to the “prohibitions” on his access to the Internet and use of the panoply of devices listed in the proposed single condition. He also objected that some of the devices listed in the modified condition, such as “Internet appliance devices,” were neither intended for nor capable of use for interpersonal communication. At the hearing on the proposed modification, the district court orally clarified that the “restrictions and/or prohibitions” language only restricted (and did not prohibit) use of various Internet-capable devices. Additionally, the court explained that the restrictions covered only certain Internet-capable devices by stating that Ullmann “has not been prohibited from using his computer, cell phone or any other electronic appliance with internet access. Rather, [Ullmann]’s use of these items may be restricted in order to monitor his post-release conduct.” In its subsequent written order, the district court repeated these conclusions verbatim, overruled Ullmann’s objections, and imposed the modified condition. Ullmann appealed. The Tenth Circuit affirmed because the district court's oral pronouncement prior to modification, clarifying that it was restricting, rather than prohibiting, Ullmann’s use of the Internet and Internet-capable devices, saved the otherwise deficient condition. View "United States v. Ullmann" on Justia Law

Defendant Elvin Alisuretove pled guilty to one count of conspiracy to commit wire fraud arising out of his role in a scheme that involved “skimming” debit card account information from convenience store gas pumps and then using that account information to make cash withdrawals from automated teller machines (ATMs). Alisuretove was sentenced to 63 months in prison, to be followed by a 36-month term of supervised release. He was also ordered to pay restitution totaling $240,682.27. Alisuretove appealed, arguing that the district court, in determining his total offense level and the length of his sentence, erred in calculating the amount of loss associated with his conduct. Alisuretove also argued that the district court erred in determining the amount of restitution under the Mandatory Victims Restitution Act (MVRA). Upon review, the Tenth Circuit concluded reversed the district court's calculation of restitution owed, but affirmed in all other respects. View "United States v. Alisuretove" on Justia Law

Petitioner-Appellant Douglas Carter, a Utah inmate, appealed the district court’s denial of his petition for writ of habeas corpus challenging his conviction and death sentence. Carter was convicted of the murder of Eva Olesen in Provo, Utah in 1985 and subsequently sentenced to death. Carter raised seven claims of error: (1) ineffective assistance of guilt-phase counsel; (2) ineffective assistance of appellate counsel; (3) ineffective assistance of sentencing counsel at his 1992 resentencing; (4) denial of due process and right to remain silent based on two of the prosecutor’s comments at closing argument; (5) denial of Confrontation Clause rights at resentencing; (6) denial of Fifth Amendment rights based on the admission of an involuntary confession; and (7) cumulative error. After review, the Tenth Circuit concluded that the district court abused its discretion in refusing to allow Carter to supplement his habeas petition with claims based on newly discovered evidence of prosecutorial misconduct and suppression of evidence. Because the district court did not address whether a stay of these claims to permit exhaustion was appropriate, the Court remanded to allow this determination in the first instance. As to his remaining claims (with the exception of his claim of cumulative error), the Court affirmed the district court’s denial of habeas relief: "[w]e conclude that these claims can be resolved even given the possibility of future evidentiary development of his prosecutorial-misconduct and suppression-of-evidence claims. Further delay and subsequent re-briefing of the other claims is not justified given the protracted time period[(]now over thirteen years[)] Mr. Carter’s federal habeas petition has been pending." The Court vacated as to Carter’s claim of cumulative error, and remanded to the district court based on the possibility that Carter’s supplemental claims could alter the cumulative error analysis. View "Carter v. Bigelow" on Justia Law

Defendant-Appellant Antonio Esquivel-Rios appeals from the district court's order denying his motion to suppress evidence. Defendant was arrested on drug trafficking charges following a police stop. In his first direct appeal, the Tenth Circuit concluded that the record lacked the quality and quality of information necessary to determine whether defendant's Fourth Amendment rights had been violated. The case was remanded to allow the district court to reconsider its ruling in light of the Tenth Circuit's review. With the benefit of additional evidence and briefing, the district court concluded that defendant's Fourth Amendment rights had indeed been violated but that suppression was not appropriate given the lack of police culpability. Accordingly, the district court denied defendant's motion to suppress for a second time. Defendant again appealed, and the Tenth Circuit, finding no reversible error this time, affirmed. View "United States v. Esquivel-Rios" on Justia Law

Defendant-appellant Dejuan Hill was indicted, tried, and convicted of bank robbery and for taking part in a larger conspiracy to rob banks, a credit union, and four pharmacies in the Tulsa area from 2009 to 2011. Before and during trial, Dejuan filed motions related to the four issues that he now raised on appeal to the Tenth Circuit Court of Appeals: (1) a motion to dismiss Count One, arguing that a fatal variance existed because the Indictment against him charged a single global conspiracy but the evidence at trial instead proved multiple, smaller conspiracies; (2) a pretrial motion for misjoinder of defendants, contending that joining his charges to those of his co-defendants was improper and so prejudicial that a separate trial was required; (3) a motion in limine to exclude evidence of gang affiliation, arguing that the evidence was both irrelevant to his charges and unfairly prejudicial to him; and (4) a motion for judgment of acquittal at the close of the evidence, arguing that the government produced insufficient evidence to convict Dejuan of any of his three charges. The district court denied each of these motions. While the Tenth Circuit agreed with defendant that there was a variance between the single conspiracy charged in the Indictment and the evidence of individual conspiracies presented at trial, the Court concluded that this variance was insufficiently prejudicial to affect Dejuan’s substantial rights. The Court affirmed on all other issues raised on appeal. View "United States v. Hill" on Justia Law

A New Mexico grand jury charged Clay O’Brien Mann with eight counts, including three 18 U.S.C. 924(c) violations, arising from his shooting three people on an Indian reservation. He appealed one section 924(c) conviction, arising from his assault and shooting of Paula Nez. As with the other two 924(c) counts, the government charged that Mann had knowingly discharged a firearm in relation to his assaulting Paula Nez. Under Supreme Court precedent, the discharge did not have to be done either “knowingly” or “in relation to” the underlying crime of violence. Mann did not object to the district court’s instructions ignoring these "unnecessarily charged conditions." For the first time on appeal, Mann argued that the district court constructively amended his indictment by not instructing the jury that, to convict, it needed to find these conditions were met. Upon review, the Tenth Circuit found no constructive amendment and thus no error. "The charged but uninstructed language was mere surplusage to the true elements of the crime." View "United States v. Mann" on Justia Law

In 2013, Defendant-Appellant Michael Pettit was indicted on one count of possession of cocaine with intent to distribute after police discovered 2.5 kilograms of cocaine hidden in a vehicle he was driving. Pettit moved to suppress that evidence, which the district court denied. A jury found Pettit guilty, and he was sentenced to ten years of imprisonment followed by eight years of supervised release. On appeal, Pettit argued that the district court erred by denying his motion to suppress because the police improperly extended a lawful traffic stop based on factors failing to give rise to objectively reasonable suspicion of criminal activity. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Pettit" on Justia Law

A jury convicted Derrick Jim of aggravated sexual abuse occurring in the Navajo Nation. Jim initially pled guilty to this offense, but later withdrew his plea and went to trial. On appeal, Jim claimed that the trial court erred when it let the Government present evidence of the admissions he made in his plea agreement and during his plea colloquy to the jury, despite Jim waiving his Rule 410 protections as part of the plea agreement underlying his (withdrawn) guilty plea. In its cross-appeal, the Government challenged Jim’s 360-month prison sentence, arguing that the district court erred in calculating Jim’s offense level under the sentencing guidelines. After review, the Tenth Circuit concluded the district court did not err in enforcing Jim’s Rule 410 waiver by allowing the Government to present to the jury Jim’s prior admissions of guilt. The Court agreed with the Government that the district court erred when it held that, in determining whether a two-offense-level enhancement under U.S.S.G. 2A3.1(b)(4)(B) for causing the victim serious bodily injury applied in Jim’s case, the court could not consider any injuries directly resulting from the sexual abuse for which Jim was convicted. Thus, the case was remanded for resentencing so the district court could determine, in the first instance, whether that enhancement was warranted in this case and, if so, the impact of that enhancement on Jim’s sentence. View "United States v. Jim" on Justia Law

Defendant Richard Franklin, subscribed to a website called "GigaTribe" which allowed him to approve other subscribers as "friends," allowing them into his "tribe." For his so-called "tribe," Franklin posted previews of pornographic images of children. In posting the previews, Franklin determined which pornographic images to share and with whom. When "friends" were given access, they could choose what they liked, download the images, and share these images with other subscribers. Franklin was found guilty on five counts of possessing and distributing child pornography, including advertisement or notice of child pornography. The sentencing guidelines called for life imprisonment, and the district court imposed five consecutive sentences totaling 100 years. On appeal, Franklin argued the evidence did not support the conviction on advertisement or notice, that the total years of imprisonment involved a substantively unreasonable sentence, and that the district judge improperly found facts (without jury findings) necessary to justify the long sentence. The Tenth Circuit rejected these arguments and affirmed. View "United States v. Franklin" on Justia Law

Simona Gallegos appeals her convictions for one count of conspiracy to distribute methamphetamine and to possess methamphetamine with intent to distribute; two counts of possession of methamphetamine with intent to distribute; and one count of use of a communication facility to facilitate the distribution of methamphetamine. Gallegos argued on appeal to the Tenth Circuit: (1) the district court erred in admitting the hearsay statements of her alleged co-conspirators; (2) the government presented insufficient evidence to support her convictions; (3) a fatal variance occurred because the indictment charged a single large conspiracy but the evidence at trial proved only multiple smaller conspiracies; (4) the district court erred in admitting testimony regarding her codefendant’s post-arrest request for an attorney; and (5) the cumulative effect of these errors requires reversal. Because sufficient evidence supported Gallegos’ convictions and because her remaining claims did not warrant reversal under its plain-error test, the Tenth Circuit affirmed. View "United States v. Gallegos" on Justia Law