Plain Error Found in Failure to Instruct Jury That Assault is an Element of Every Conviction Under 18 U.S.C. § 111(a)(1)

By: Mackenzie Shields

In United States v. Wolfname, 2016 WL 4492465 (10th Cir. 2016), the Tenth Circuit held that assault is an element of every conviction under 18 U.S.C. § 11(a)(1). While responding to an early-morning 911 call, Officer Blaine Parnell—a police officer with the United States Bureau of Indian Affairs—attempted to arrest Wolfname on outstanding warrants. Wolfname fled. As a result of the flight and ensuing scuffle, Wolfname was indicted for “knowingly and forcibly assault[ing], resist[ing], and interfer[ing] with” Officer Parnell while he “was engaged in the performance of his official duties, which resulted in bodily injury to Parnell.” The jury found Wolfname guilty of resisting and interfering with Parnell in violation of § 111(a)(1), but wrote “No,” next to the assault option on the verdict form.

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Tenth Circuit Finds Criminal Pattern Jury Instruction § 1.31 Erroneous

By: Mackenzie Shields

In United States v. Little, 2016 WL 3902581 (10th Cir. 2016), the Tenth Circuit held that its own Criminal Pattern Jury Instruction § 1.31 was legally flawed because it omitted the element of intent to exercise control.

After his conviction of being a felon in possession of a firearm and of possession a stolen firearm, Appellant challenged the constructive possession jury instruction. Appellant argued that constructive possession requires proof of intent to exercise dominion and control over an object following the Supreme Court’s opinion in Henderson v. United States, 135 S. Ct. 1780 (2015).

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Tenth Circuit Holds that 16(b)’s Residual Clause is Unconstitutionally Vague

By: Mackenzie Shields

In Golicov v. Lynch, No. 16-9530 (10th Cir. 2016), the Tenth Circuit decided whether INA’s definition of “crime of violence,” which expressly incorporated § 16(b)’s definition of the same term, was unconstitutionally vague in light of the Supreme Court’s decision in Johnson. Following the precedent set by the Sixth, Seventh, and Ninth Circuit, the Tenth Circuit held that 18 U.S.C. § 16(b) was not meaningfully distinguishable from the ACCA’s residual clause and thus, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(f), must be deemed unconstitutional in light of Johnson.

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10th Circuit Rejects the Consideration of Collateral Consequences at Sentencing

By: Zachary M. Nielsen

In an unpublished opinion, United States v. Morgan WL 6773933 (10th Cir. 2016), the Court found the district court’s analysis of collateral consequences to be impermissible and remanded for re-sentencing. Following the Sixth, Seventh, and Eleventh Circuits, it determined that collateral consequences to a felony conviction are irrelevant in assessing what sentence is appropriated under 18 U.S.C. § 3553(a). Collateral consequences, it held, are not part of the sentence.

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District Court Finds Collateral Consequences Increase Harshness of Would-be Sentence

By: Zachary M. Nielsen

In United States v. Nesbeth WL 3022073 (E.D.N.Y. 2016) the district court took a fresh approach to sentencing when it considered collateral consequences and gave a defendant probation rather than jail time. Following its Second Circuit precedent (and a similar holding in the fourth Circuit), the court found the collateral consequences of a felony conviction relevant when balancing the 18 U.S.C. § 3553(a) factors. It also called for more courts to do the same.

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10th Circuit Grants Habeas Relief for Brady Violation

By: Zachary M. Nielsen

In McCormick v. Parker (E. D. Okla.)(14-7095)(10-CV-00117-JHP-KEW), the 10th Circuit reversed the district court’s denial of petitioner’s writ of habeas corpus under 28 U.S.C. § 2254. The Court found that, under Brady v. Maryland, 373 U.S. 83 (1963), the state suppressed favorable and material evidence when it allowed a witness to testify falsely at trial. The witness testified falsely that she was a certified sexual assault nurse examiner (SANE) and provided the only piece of direct evidence linking McCormick to the alleged sexual assaults. This violated McCormick’s due process rights.

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10th Circuit Says No to Compulsory Polygraph Testing

By Zachary M. Nielsen

The Tenth Circuit made waves in United States v. Von Behren  (D. Colo)(15-1033)(04-CR-0341-REB-1), when it invalidated the sexual history polygraph requirement of Mr. Von Behren’s state-approved sex offender treatment program. The program was a prerequisite of Mr. Von Behren’s terms of supervised release following a prison sentence. Writing for the court, Circuit Judge Seymour concluded that such a requirement compelled Mr. Von Behren to make incriminating testimonial statements in violation of his Fifth Amendment right.

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