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

Michael Fisher filed a post-conviction application, but the state district court waited over eight years to rule on it. The Respondents argued that by failing to ask for an expeditious ruling, Fisher abandoned the post-conviction proceedings. The issue this case presented to the Tenth Circuit was whether a state post-conviction application remains “pending” when it could have been (but wasn’t) dismissed on grounds of abandonment? The Court concluded that the application does remain pending in these circumstances. Thus, the limitations period was tolled while the post-conviction application worked its way through the state courts. Because the federal district court drew the opposite conclusion, the Tenth Circuit reversed. View "Fisher v. Clements, et al" on Justia Law

Defendants-Appellants David Banks, Kendrick Barnes, Demetrius Harper, Clinton Stewart, Gary Walker, and David Zirpolo were convicted following a jury trial on multiple counts of mail fraud and wire fraud, and conspiracy to commit mail fraud and wire fraud. Defendants contacted numerous staffing agencies to “assist in providing temporary services. Witnesses from multiple staffing companies testified that a Defendant (or someone acting as Defendants’ agent) approached them and expressed the desire for "payrolling" services. The staffing-company witnesses testified that they were induced into believing that Defendants’ companies were either doing business with major law-enforcement agencies or were on the verge of selling a specialized software to these agencies. These witnesses testified that Defendants (or Defendants’ agents) assured them that this alleged law-enforcement business would enable Defendants’ companies to pay the staffing companies’ invoices, and, critically, that they relied on these representations in choosing to do business with Defendants. Trial testimony from representatives of the law-enforcement agencies with whom Defendants claimed to be doing business revealed the falsity of Defendants’ representations to the staffing companies. When questioned about their failure to pay the staffing companies’ invoices, Defendants gave false assurances that payment would be forthcoming, and they continued to imply that they were doing business with large government law enforcement agencies. In the end, forty-two different staffing companies were left with outstanding invoices totaling in excess of $5,000,000, which could not be submitted to the government agencies, which had no business relationship with Defendants’ companies. Defendants were sentenced to terms of imprisonment ranging from 87 to 135 months. Defendants argued on appeal to the Tenth Circuit: (1) their right to a speedy trial was violated when the district court granted multiple continuances of the trial date (at Defendants’ request); (2) the district court compelled co-Defendant Barnes to testify in violation of his Fifth Amendment privilege against self-incrimination and failed to give a proper curative instruction; (3) the district court abused its discretion in excluding the testimony of two witnesses Defendants sought to call at trial; and (4) the cumulative effect of the district court’s otherwise harmless errors prejudiced them and required reversal. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Banks" on Justia Law

After a sting operation involving two confidential informants and substantial audio and video surveillance, federal law enforcement officers caught Jesus Cabral-Ramirez ("Mr. Cabral") and Defendant-Appellant Maria Gutierrez de Lopez ("Ms. Gutierrez") attempting to transport an undocumented alien from El Paso, Texas to Denver, Colorado. A federal grand jury indicted Ms. Gutierrez on one count of conspiring to transport undocumented aliens. At trial, the Government elicited testimony from Border Patrol Agent Brian Knoll about the immigration status of the individual Ms. Gutierrez allegedly conspired to smuggle. Agent Knoll also provided expert testimony that transporting undocumented aliens away from U.S./Mexico border regions to the interior of the United States significantly reduced the odds of apprehension by law enforcement. The confidential government informants testified anonymously about several conversations they had with Ms. Gutierrez tending to support the charges against her. Although the Government provided the defense with the informants’ general criminal backgrounds, compensation records from federal agencies, and immigration status, it did not disclose their actual identities. Defense counsel cross-examined both witnesses in light of the disclosures provided by the Government, but was unable to conduct adequate independent pre-trial investigation. The jury convicted Ms. Gutierrez as charged, and the district court sentenced her to three years of probation. She appealed, arguing: (1) Agent Knoll’s testimony about the smuggled individual’s immigration status introduced inadmissible testimonial hearsay in violation of the Federal Rules of Evidence and the Confrontation Clause; (2) Agent Knoll’s expert testimony about the alien-smuggling trade was not helpful to the jury under Federal Rule of Evidence 702(a); and (3) the Government’s use of anonymous testimony violated the Confrontation Clause of the Sixth Amendment. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Gutierrez De Lopez" on Justia Law

Camille Lente appealed a sentence of 192 months' imprisonment, which was well above her advisory Guidelines range of 46 to 57 months, for three counts of involuntary manslaughter and one count of assault resulting in serious bodily injury. The district court relied on several specific factual circumstances in calculating its sentence, including Lente's excessive recklessness, her underrepresented criminal history, and her postconviction conduct. Upon review, the Tenth Circuit concluded that the district court thoroughly considered the relevant sentencing factors and adequately explained the basis of its decision to vary substantially upward, and that the sentence imposed was reasonable. View "United States v. Lente" on Justia Law

Following a jury trial, defendant Tony Washington was convicted on two drug charges: (1) conspiracy to distribute crack and marijuana; and (2) conspiracy to maintain a residence for the purpose of distributing those same drugs. As part of determining Washington's advisory sentencing range under the 2008 version of the United States Sentencing Guidelines, the district court calculated Washington's base offense level. On direct appeal, Washington contended the district court attributed too large a quantity of crack to him, "challeng[ing]" two components of the district court's calculations: (1) the conversion of $2600 into 85.05 grams of cocaine base; and (2) the estimation he and his coconspirators purchased 680.4 grams of cocaine base with their pooled money. The Tenth Circuit specifically declined to resolve Washington's challenge to the conversion of $2600, noting: "Washington . . . recognizes that only the challenge to the 680.4 grams can lower the drug quantity below 500 grams and thereby reduce his base offense level under U.S.S.G. 2D1.1(c)(4). We therefore confine our analysis to the 680.4 grams." The Court then denied Washington's appeal, concluding the quantity of 680.4 grams was supported by sufficient evidence. In August 2011, Washington filed a pro se motion for sentence reduction pursuant to section 3582(c)(2) and Amendment 750 of the Sentencing Guidelines. Instead of challenging the correctness of his base offense level, he made the legally erroneous argument that Amendment 750 allowed the district court to reconsider its previous decision to give him a sentence above the bottom of the advisory Guidelines range. The district court denied his motion, concluding that because Amendment 750 did not reduce Washington's offense level, and it was without power to alter his sentence. In May 2013, Washington, acting through appointed counsel, filed another 3582 motion. Although he styled his pleading as a "Motion for Sentence Reduction Under 18 U.S.C. 3582(c)," he did not assert the district court had the power to modify his sentence. The district court denied Washington's motion. Washington then appealed to the Tenth Circuit, asking the Court to take up and decide the issue it declined to resolve on direct appeal. The government argued the Tenth Circuit lacked statutory jurisdiction because Washington's appeal did not fit within the four categories of allowed sentencing appeals under 18 U.S.C. 3742(a). The question presented to the Court on appeal was thus a narrow legal question: Could Washington use the sentence-modification procedure set out in 18 U.S.C. 3582(c)(2) to have the court decide an issue left unresolved on direct appeal? "The Supreme Court's decision in Dillon v. United States, 130 S. Ct. 2683 (2010), coupled with the policy statements accompanying U.S.S.G. 1B1.10, compel[ed] a negative answer." View "United States v. Washington" on Justia Law

Defendant-appellant Juan Morales was found guilty of being a convicted felon in possession of a firearm and sentenced to eighty-six months' imprisonment. On appeal, defendant argued the evidence was insufficient to support his conviction. He also argued his Fifth Amendment due process rights were violated when he was placed in handcuffs and transported through the public area of the courthouse in view of the venire. Upon review of the trial court record, the Tenth Circuit found no reversible error and affirmed. View "United States v. Morales" on Justia Law

As a result of an investigation into purported clinical weight-loss studies from 2006-2008, defendant Edward Mulikin was indicted by a grand jury sitting in the District of Colorado in November 2011. The indictment consisted of nineteen counts of mail fraud. Defendant was arrested in January 2012; in August 2012, a superseding indictment was filed asserting the same nineteen counts of mail fraud. The superseding indictment alleged that Defendant's purported weight-loss studies were part of an "advance fee scheme" in which Defendant made false representations to induce participants to submit deposits which he had no intention of refunding. Defendant's residence was searched pursuant to a warrant. Law enforcement seized two hard drives, a computer, two binders, and two folders during the search. Prior to trial, Defendant unsuccessfully moved to suppress the evidence seized at his residence. After a trial, the jury convicted defendant to seventeen of the nineteen counts of mail fraud. Defendant appealed the district court's denial of his pretrial motion to suppress the evidence seized at his home, challenging whether the warrant established probable cause that the items seized would have been located at the residence. Defendant also argued the affidavit failed to establish a nexus between the criminal acts and the residence to be searched. Furthermore, defendant argued the list of items to be seized in the search warrant was impermissibly broad. Upon review, the Tenth Circuit held that even if evidence seized pursuant to the warrant was admitted in error, that admission was harmless and did not warrant reversal of defendant's conviction. View "United States v. Mullikin" on Justia Law

Defendant Charles Shaw was convicted of robbing a bank and two credit unions, attempting to commit a second robbery at one of the credit unions, and committing four related firearms offenses. He was acquitted on a charge of robbing a second bank. On appeal he argued: (1) the jury could not be impartial because it learned of an improper gesture he made to a member of the jury panel during jury selection; (2) the district court erred in admitting a confession of a codefendant who had been convicted at an earlier trial; (3) the court also erred in admitting evidence of an uncharged bank robbery; and (4) the court at sentencing, rather than the jury, found that he had been previously convicted of a firearms offense. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Shaw" on Justia Law

Defendants-Appellants appealed a district court order denying their motion for summary judgment based on qualified immunity. Plaintiff-Appellee Michael Leatherwood brought suit seeking declaratory and monetary relief under 42 U.S.C. 1983 for violation of his constitutional rights stemming from the search of his house while he was a probationer in Oklahoma. Defendants were Oklahoma Department of Corrections Probation and Parole Division employees who participated in or authorized the search. The district court denied their motion for summary judgment based on qualified immunity, finding that "questions of material fact remain[ed] regarding the existence of reasonable suspicion" for the search. The Tenth Circuit reversed the district court, finding: (1) as a probationer, plaintiff had a diminished expectation of privacy; (2) the search of his house was reasonable if supported by reasonable suspicion; (3) probation searches could be premised on less reliable information than required in other contexts; (4) an anonymous, uncorroborated tip and a phone call from plaintiff's ex-wife were enough to create reasonable suspicion (defendant Welker had previously talked to plaintiff's ex and was presumably able to assess the wife's credibility and rely on her information); thus (5) the search of plaintiff's home did not violate his Constitutional rights. View "Leatherwood v. Welker, et al" on Justia Law

Petitioner-appellant Lawrence Taylor sought a certificate of appealability (COA) to challenge the district court's dismissal of his petition for habeas relief. He was found guilty by an Oklahoma jury of first degree murder and shooting with intent to kill for which he received consecutive life sentences. In his application for post-conviction relief, he argued that the government's witness against him at trial lied about his alleged confession to shooting the two victims. The witness recanted his testimony, but the district court denied relief. Thereafter, petitioner sought a COA from the Tenth Circuit. To the Tenth Circuit, petitioner argued the witness' affidavit recanting his testimony at trial was "newly discovered evidence" The Tenth Circuit concluded petitioner did not make a substantial showing that the district court erred in its finding that the "date on which the factual predicate of the claim… could have been discovered" prior to the date on which the judgment became final. As such, the Court denied the COA and dismissed the appeal.View "Taylor v. Martin" on Justia Law