News You Can Use: Tenth Circuit addresses the best evidence rule – and says a lot of other interesting stuff along the way

We read this recent 111-page opinion so you don’t have to. This post is long – though not 111-pages long – and we think it’s worth it.

In United States v. Chavez, a divided panel of the Tenth Circuit issued an epic opinion addressing what is popularly known as the best evidence rule – but which is more accurately called “the original document rule.” That rule, codified in Fed. R. Evid. 1002, provides that “[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”

Chavez holds that the prosecution may not introduce an English-language transcript purporting to translate a foreign-language audio recording without also introducing the audio recording itself. And while that is straightforward enough, Chavez goes on to call into question a lot of problematic things that prosecutors sometimes do with transcripts of our clients’ alleged calls and conversations. For appellate lawyers, it also has interesting things to say about harmless-error review. Read on for an explanation of Chavez’s holding, along with takeaways for both trial and appellate lawyers.

Background

Randolfo Chavez was indicted for distributing methamphetamine. The prosecution’s case included three conversations that Mr. Chavez allegedly had with government cooperators, including conversations during two (alleged) controlled buys. The three conversations – which were mostly, but not entirely, in Spanish –  were recorded.

At trial, the prosecution offered into evidence what purported to be transcripts of the recordings, with Spanish and English versions side-by-side. The prosecution did not offer the recordings themselves. Defense counsel objected to the transcripts based on the best evidence rule, insisting that the recordings themselves needed to be offered into evidence. The district court overruled the objection, leaving the jury to rely on the transcripts without the underlying recording.

Chavez appealed, arguing the transcripts were inadmissible under Fed. R. Evid. 1002.

The Tenth Circuit’s Holding

A divided panel agreed with Mr. Chavez and reversed his convictions.

Judge Holmes’s opinion for the Court, joined by Judge Seymour, is characteristically comprehensive. It canvasses the history, purpose, and scope of the best evidence rule, and the opinion could be a good resource for those who need to brush up on the rule and how it is applied in the Tenth Circuit.

Ultimately, the majority opinion reasons:

  1. Under Rule 1002, “evidence offered to prove the contents of an original writing, recording, or photograph is not admissible, unless the original itself is also admitted.” Maj. Op. at 30.
  2. The bar on “secondary evidence of an original’s contents unless the original is in evidence . . . is absolute,” save for certain explicitly stated exceptions. Id. at 32.
  3. The list of exceptions does not include any exception for foreign-language recordings.” Id. at 32-33.
  4. Consequently, “under the plain meaning of Rule 1002, the best-evidence rule does not permit courts to admit English-translation transcripts of foreign-language recordings when the recordings themselves are not also in evidence.” Id. at 33.
  5. The prosecution “sought to prove the contents of the recordings” when it “sought to prove the words purportedly spoken by Mr. Chavez and others,” but it failed to introduce the recordings themselves. Id. at 44.
  6. Therefore, “[t]he district court’s decision to admit the transcripts [of the recordings] . . . plainly flies in the face of the best-evidence rule and was an abuse of the court’s discretion.” Id. at 46.

Although the majority opinion’s reasoning is largely formalistic, it is informed by the concerns underlying Rule 1002. The best evidence rule requires an original to ensure reliability and to guard against the “human error or outright fraud” that secondary evidence of an available original’s contents may involve. Id. at 30-32. And in Mr. Chavez’s case, there were grave concerns about the accuracy of the Government’s transcripts. Id. at 10-18, 62-64.

For example, the side-by-side Spanish-and-English transcript lists the following as equivalent phrases:

Spanish – “Ponte las pinches pilas (unintelligible) . . . .”

English – “I’m like the boss. I’m your boss. I can get you anything you want. I got everything for the next load. It’s for us. Keep doing a good job and instead of Mckleen I’ll be hooking you up.”

“It is unclear,” the Court says, “how four Spanish words plus and ‘unintelligible’ word or phrase translate into thirty-eight intelligible words in English.” Id. at 15-16.

In another example, the transcript lists the following as Spanish-to-English equivalents:

Spanish – “Tenemos que pagarle al otro way . . .

English – “Fucking 19 grams, We have to pay the other guy. Is this your number?”

Id. at 63-64.

The Court cites numerous other inexplicable discrepancies.

The Court’s opinion goes on to reject the Government’s argument that introducing the recordings was not required. The Government had posited that the fact that the recordings were in Spanish altered the analysis because “recordings in a language that jurors do not understand is not the best evidence” of what was said. Id. at 46-47 (quotation marks omitted). Rather, said the Government “the ‘best evidence’ was the translated transcripts.” Id. at 47. The Court explained that this “evince[d] a fundamental misunderstanding of the legal import of the best-evidence rule.” Id. “Despite its somewhat misleading name, the best-evidence rule’s concern is not with the admission of the best evidence in a qualitative sense.” Id. at 48.

Accordingly, the majority opinion squarely holds that courts must admit the original audio of a recording in a foreign language if it is to admit a translated transcript of such a recording.

Or does it…?

Judge Hartz’s Dissent

Judge Hartz dissented, maintaining that “[t]he sin of the trial judge was to use his common sense.” Dissenting Op. at 1. The dissent maintains that (for reasons explored below) trial courts can still admit translated transcripts without also admitting the foreign-language recording itself, based on the dissent’s theory, notwithstanding the majority opinion. Id. at 6.

Judge Hartz’s merits analysis proceeds as follows:

  1. Rule 1002 requires that the original of a writing, recording, or photograph be admitted “‘unless these rules or a federal statute provides otherwise.” Id. at 9.
  2. Rule 703 allows for the admission of expert opinion testimony without the information underlying the expert opinion testimony also being admitted. Id. at 7.
  3. Consequently, expert testimony opinion addressing the contents of a writing, recording, or photograph need not be accompanied by the original of the writing, recording, or photograph, because “Rule 703 provides otherwise.” Id. at 9.
  4. A translation of a foreign-language recording is tantamount to expert opinion testimony. Id. at 6-7.
  5. Therefore, a transcript translating a foreign-language recording may be admitted even if the recording itself is not admitted. Id. at 9-10.

Although Judge Hartz acknowledges that there may be good reasons for admitting the recording itself in a particular case, id. at 18, he maintains that trial courts should have the discretion to exclude a foreign-language recording under Rule 402 or Rule 403 on the ground that it is irrelevant; would waste time; or would confuse or mislead the jury, id. at 10.

Why does Judge Hartz think that trial courts can follow this path despite the majority’s holding? The reason is that the majority opinion, in a footnote spanning three pages, explicitly declines to “engage with the merits of the Dissent’s arguments” on the ground that the Government never argued for anything like the dissent’s theory for admitting the transcripts without the recordings. Maj. Op. at 50-52 n.17. Therefore, Judge Hartz maintains, “trial courts in this circuit . . . are free to adopt [his rationale] if they find it persuasive.” Dissenting Op. at 6. Based on the majority opinion’s holding that exceptions to Rule 1002 are strictly limited, it is questionable whether a future panel of the Tenth Circuit would agree with Judge Hartz that his approach remains viable.

TAKEAWAYS

For Trial Lawyers: Challenging Problematic Transcripts and Other Nuggets

More than the Chavez’s holding regarding the best evidence rule, it’s criticisms of the transcripts the prosecution used in this case are likely to have broad applicability for trial lawyers dealing with such transcripts – even when the prosecution introduces the original.

The majority opinion deems the following aspects of the prosecution’s transcripts “problematic and potentially misleading.” Maj. Op. at 56-59, 61-64 (emphasis added).

  • That the transcripts purported to identify Mr. Chavez as a participant in the conversations, improperly treating Mr. Chavez’s participation “as an established (even stipulated) fact.”
  • That the transcripts identified themselves as transcripts of “controlled buys” of methamphetamine, which was improper “editorial commentary . . . not subject to cross-examination.”
  • That the transcripts purported to attribute incriminating statements to Mr. Chavez.
  • That the transcripts “offer[ed] no indication of who created them, when or how the respective transcribers did so, how much time elapsed between the making of each successive statement within the three transcripts, and whether these exhibits reflect a complete transcription of the underlying recordings,” all of which “make their integrity and soundness questionable.”

The Court was sharply critical of these features of the transcripts, and this section of the opinion provides strong grounds for precluding prosecutors from introducing transcripts with such features under Rule 403, under the hearsay rule, under the Confrontation Clause, or for lack of foundation.

Judge Hartz’s dissent suggests another trial-practice tactic. In a point not addressed by the majority opinion, and for reasons we won’t go into here, Judge Hartz argues at length that it is improper for trial judges to declare in front of a jury that a witness is qualified to give expert testimony. Dissenting Op. at 31-35. He provides extensive persuasive authority for the point. And he states that, although the Tenth Circuit “has not prohibited trial judges from declaring in open court that a witness is an expert,” “perhaps we should.” Id. at 35.

Even if telling the jury that a witness is an expert would not be reversible error, Judge Hartz’s opinion is a good resource for arguments that a trial court should refrain from doing so as a matter of discretion.

For Appellate Lawyers: Rebutting Harmless-error Arguments  

Several aspects of the majority’s harmless-error analysis (it finds the error not harmless) should be useful in other appeals:

  • The majority emphatically distinguishes harmless-error analysis from sufficiency-of-the-evidence analysis and emphasizes that the credibility of witnesses is up for grabs when harmless error, rather than sufficiency, is at issue. Maj. Op. at 69-71.
  • It analyzes prejudice by assuming that neither the transcripts nor the underlying recordings would have been admitted, rather than assuming that both the transcripts and the underlying recordings would have been admitted. Id. at 65.
  • It posits that, in assessing harmless error, it is appropriate to think about “the evidence that [the prosecution] did not produce” – in this case, evidence like photographs of Mr. Chavez participating in the controlled buys. Id. at 66-69.
  • It says that a prosecution case is “not strong” when it rests primarily on the testimony of government cooperators who expected benefits. Id. at 66, 69-70.

News You Can Use: Tenth Circuit reverses imposition of terrorism sentencing enhancement-U.S.S.G. § 3A1.4

In United States v. Ansberry, the Tenth Circuit, in a case of first impression, reversed the imposition of the terrorism sentencing enhancement—U.S.S.G. § 3A1.4—that added a whopping 12 levels to the defendant’s offense level and boosted his criminal history category from I to VI.

The background facts

              In 1971, David Ansberry, then 19 years old, moved to Nederland, Colorado and fell in with a group of “hippies.”  One of the group members, Guy Goughnor, got rowdy in a bar one night and was escorted out by Town Marshal Renner Forbes.  Mr. Goughnor was never again seen alive and his body was later found in a remote canyon.  He had been shot in the head.  The Boulder County Sherriff’s Department suspected Forbes but was unable to build a case and never brought charges.  But 25 years later, Forbes confessed and was convicted of manslaughter.  He was sentenced to probation.

              By then, Mr. Ansberry had long since moved on from Nederland. But in 2016 he returned to avenge his friend’s death.  At around 5 am one morning, Mr. Ansberry placed a would-be homemade bomb – consisting of (among other things) a light bulb, a cell phone, and an explosive powder called HMTD – outside the police department.  The bomb was supposed to go off when Mr. Ansberry called the phone, but it didn’t work.  After trying unsuccessfully to detonate the device, Mr. Ansberry skipped town, leaving the defective bomb in front of the police department.  Officers found it hours later.  Using a robot, they swung it around and dropped it on the pavement, but the bomb wouldn’t go off.  They finally got it to detonate by firing a steel slug at it.   

The federal prosecution and the sentencing objections

              The government charged Mr. Ansberry with one count of using or attempting to use a weapon of mass destruction against a person or property.  Mr. Ansberry pleaded guilty without a plea agreement.  He admitted only to attempting to use a destructive device against property, not a person, when he attempted to set off the bomb early in the morning.

              Mr. Ansberry raised numerous objections at sentencing. Among other things, counsel objected to a three-level, official-victim enhancement (U.S.S.G. § 3A1.2) and also to a terrorism enhancement (U.S.S.G. § 3A1.4).  Together, these two enhancements dramatically increased his guidelines range from 41-51 months, to 324-405 months. The district court overruled the objections and sentenced Mr. Ansberry to 324 months—or 27 years—imprisonment.

The appeal

Mr. Ansberry appealed, and the Tenth Circuit vacated the sentence.  Judge McHugh, writing for a panel that included Circuit Judges Lucero and Eid, found the district court made two reversible mistakes.

              First, the Tenth Circuit held the official-victim enhancement should not have been applied. The district court had applied the enhancement on the theory that Mr. Ansberry had victimized the officers who discovered the defective bomb hours after he had tried to detonate it. But although leaving the bomb for others to find may have constituted relevant conduct within the meaning of the guidelines, the official-victim enhancement – unlike nearly all others – requires that an official be victimized by the conduct comprising the “offense of conviction,” that is, the conduct that satisfies the elements of the offense.  And here, Mr. Ansberry had pleaded guilty only to attempting to damage property, which occurred only during the several minutes he tried unsuccessfully to set off the bomb.

              Second, the Tenth Circuit found that the district court erred in imposing the terrorism enhancement that so drastically increased Mr. Ansberry’s guideline range. The district court had found that the enhancement applied because Mr. Ansberry’s offense was, in the words of the guideline, “calculated to retaliate against government conduct.”  Counsel below had argued that, whatever Mr. Ansberry thought he was doing, he wasn’t retaliating against government conduct because Town Marshal Forbes had not been acting as a government official when he murdered Mr. Ansberry’s friend.  The district court refused to make a finding one way or another on this because, in her view, all that mattered was Mr. Ansberry’s subjective belief that he was retaliating against government conduct.  Mr. Ansberry argued that this was wrong – that the enhancement could only be applied if the conduct Mr. Ansberry was retaliating against was objectively governmental in nature.  Again, the circuit agreed.

Takeaways

  1. Preserve, preserve, preserve! Mr. Ansberry’s lawyers meticulously raised and preserved each of the challenges to his guidelines calculations.  Thanks to this careful lawyering, Mr. Ansberry didn’t face the hurdle of overcoming the plain-error standard on appeal.  Even if the district court isn’t persuaded by your arguments, the Tenth Circuit may be.
  2. Pay attention to the plain language of the guidelines.  Ultimately, both successful arguments came down to the plain language of the guidelines—what is the “offense of conviction,” and what does it mean to “retaliate against government conduct”? Especially when you are dealing with less-common guideline provisions, consider whether the plain language really applies to your client’s case.

News You Can Use: Tenth Circuit Will Hear Argument Today (at 2 p.m.) In A Noteworthy Compassionate Release Appeal

The Tenth Circuit will hear oral argument today September 22, 2020 at 2 p.m., in United States v. Maumau, No. 20-4056, a government appeal out of the District of Utah with potential implications for compassionate release litigation throughout the circuit. The issue is whether the district court has authority to determine for itself what constitutes an “extraordinary and compelling reason” that would justify compassionate release under 18 U.S.C. § 3582(c)(1)(A), notwithstanding the BOP and the Sentencing Commission have promulgated definitions.  The case concerns both the language of Section 3582(c) and the validity of USSG 1B1.13, as well as its commentary. Former federal district court judge John Gleeson represent Mr. Maumau.  You can learn more about Judge Gleeson here: https://www.debevoise.com/johngleeson                   You can listen to the argument in real time on the circuit’s YouTube channel by clicking here:https://www.youtube.com/watch?v=IaR1ZYqvC4A                                  Audio recordings of the arguments can be found on the circuit’s website – with a time lag of about two days – by clicking here: https://www.ca10.uscourts.gov/oralargument/search/recent

The appellate briefs and district court order are available here:

News You Can Use: Tenth Circuit reverses denial of motion to suppress, finds involuntary confession induced by lies and false promises of leniency

This week, in United States v. Young, the Tenth Circuit held the district court erred in refusing to suppress defendant’s confession, finding the confession was involuntary because it was induced by a federal agent’s misrepresentations about the law and false promises of leniency, including a false promise about the agent’s access to the federal judiciary.

Facts

In an interview with local agents, Mr. Young admitted that a small amount of drugs found the morning of his arrest were his, but denied that a much larger quantity found later that day were his. He then revoked his consent to speak. When an FBI Special Agent later questioned Mr. Young, he told Mr. Young he had spoken to the judge, and that Mr. Young faced either a five-year or ten-year charge. The agent then told him that, with each truthful statement he made, he could “physically buy down” his sentence. Within moments, and in response to the agent’s first question, Mr. Young admitted the larger quantity of drugs were his as well.

Mr. Young moved to suppress his confession as involuntary.  At the suppression hearing, the agent claimed he misspoke – he meant to say not judge but “prosecutor.”  The agent also said he did not know the actual sentencing ranges for Mr. Young’s offenses and was just providing a tangible number to help make his case that “cooperation can pay dividends.” Although the court found the agent made false representations and improper promises of leniency, the judge concluded that Mr. Young’s confession was not involuntary and denied his motion to suppress.

Mr. Young appealed.  He argued that, although the district court was correct to find as a factual matter that there was improper coercion, it was wrong in its legal conclusion that Mr. Young’s confession was voluntary.

The Tenth Circuit’s decision

The government did not challenge on appeal the district court’s factual findings.  So the Tenth Circuit reviewed (de novo) only the trial court’s legal conclusion that Mr. Young’s confession was voluntary.  The Court of Appeals recited the law applicable to determining whether a confession has been coerced, emphasizing the inquiry is based on a totality of the circumstances and requires consideration of “both the characteristics of the accused and the details of the interrogation.” (Opinion at 7).

The Court first addressed the agent’s conduct–his misrepresentations and promises of leniency.  It was significant that the agent misrepresented the law to Mr. Young, “a factor that weighs in favor of concluding his actions were coercive.” (Opinion at 9). In addition, the agent did not merely inform Mr. Young the cooperation would be viewed favorably by a prosecutor, but said he had spoken with a federal judge who would reward him for his cooperation. “But that is not the way the federal system works,” the Court of Appeals held.  Although the Court of Appeals acknowledged that some of aspects of the interrogation were not coercive, these factors were not dispositive.

Finally, the Court of Appeals did not agree with the trial judge that Mr. Young’s prior experience with the state criminal justice system would render him less susceptible to believing promises of leniency and misrepresentations by a federal law enforcement officer explaining his access to a federal judge.

The district court’s decision was reversed and the judgment against Mr. Young was vacated.

Takeaways

  • Use this decision for its helpful recitation of the well-settled law governing involuntary confessions.
  • Note the Court’s repeated emphasis of the totality of the circumstances test (mentioned at least 6 times in the opinion) as the operative framework for assessing voluntariness, making clear no single factor is determinative.
  • But take care to view the holding in its factual context.  Consider whether the nature of this particular agent’s misrepresentation–that he had personal access to a federal judge–significantly impacted the Court’s view of the ultimate merits.

 

 

News You Can Use: Tenth Circuit limits use of community caretaking exception and inevitable discovery doctrine in Fourth Amendment case

In United States v Neugin, __F.3d__, 2020 WL 2091842 (10th Cir. May 1, 2020) (published), the Tenth Circuit limited the use of the community caretaking exception and refused to apply the inevitable discovery doctrine to a search of an automobile. Judge Matheson authored, joined by Judge Ebel. Judge Hartz dissented.

Facts: An officer spotted ammunition while lifting the lid of a truck’s camper; he ran a background check and the driver was a felon.

Officers responded to a domestic dispute between Mr. Neugin and his girlfriend, Ms. Parrish, that was taking place at a restaurant. While mediating the dispute, one officer, without permission, opened the lid of the truck’s camper to get Ms. Parrish’s belongings. In doing so, he looked inside the camper and saw a large bucket containing several rounds of ammunition. Officers ran a background check on Mr. Neugin, which showed that he was a felon. An officer asked Ms. Parrish whether Mr. Neugin had a firearm. She said he had a shotgun in the truck and had threatened her with it the evening before. Ms. Parrish consented to the search of the vehicle, and one officer saw the stock of a firearm protruding from the truck. It turned out to be a shotgun, and Mr. Neugin was arrested. Mr. Neugin pleaded guilty to being a felon in possession of a firearm and ammunition, but preserved the suppression issues for appeal.

The community caretaking exception did not excuse the warrantless search.

The community caretaking exception applies only when an officer’s actions are warranted by (1) state law or sound police procedure, and are (2) justified by concern for the safety of the general public. The officer’s actions must also outweigh the individual’s privacy interests. Here, opening the camper wasn’t necessary to protect anyone, even Ms. Parrish. While the search was intended to facilitate the retrieval of Ms. Parrish’s belongings from the scene of the dispute, an officer’s “benign motive” is not enough, and the search was not “de minimis.”

The inevitable discovery doctrine didn’t apply because there would have been no reason to impound the car absent the warrantless search that led to Mr. Neugin’s arrest.

The government argued that even if opening the camper was unconstitutional, the evidence should not have been suppressed because the truck inevitably would have been impounded and searched. The Tenth Circuit disagreed. Instead, the Court reasoned that, if officers had not opened the camper, they wouldn’t have necessarily seen the ammunition, run a criminal history check, or found the gun. Without the violation, therefore, Mr. Neugin would not inevitably have been arrested. And without the arrest, the truck would not inevitably have been impounded and searched. Even though the truck was broken down, Mr. Neugin could have called his own towing company or a mechanic.

Notes from the notes.

Some other key points appear in footnotes, but are worth noting.

  • The plain-view exception did not apply because the officer was not lawfully positioned when he found the ammunition.
  • The officer could not rely on Ms. Parrish’s consent to search because any consent came after the warrantless search that uncovered the ammunition.
  • The automobile exception didn’t apply because the officer did not have probable cause to believe that contraband would be found inside. 

Hartz dissents.

Judge Hartz would have affirmed the district court’s decision that the community caretaking exception applied. He reasoned that the community caretaking exception extended to the officers’ attempts to keep the disputing couple under control and keep an eye on Ms. Parrish while she retrieved her belongings from the truck. He thus thought it was proper for the officer to lift the lid of the camper shell, so as to mediate any further argument.

Key Takeaways

The community caretaking exception is limited. Non-investigatory searches of automobiles under the community caretaking function are only justified if warranted by state law or sound police procedure, and are justified by concern for the safety of the general public.

Use this case for its good language on inevitable discovery. The Court reaffirms that “the inevitable discovery exception to the exclusionary rule cannot be invoked because of [a] highly speculative assumption of ‘inevitability.’” United States v. Owens, 782 F.2d 146, 153 (10th Cir. 1986).

News You Can Use: Tenth Circuit Reverses First Degree Murder Conviction (and reaffirms important principles of appellate law along the way)

The Tenth Circuit reversed appellant Brian Tony’s first-degree murder conviction this week and remanded the case for a new trial.  Not only is this an amazing defense victory with an incredible remedy (kudos to AFPD Josh Lee in Denver), but the relatively short appellate decision is packed with important information, particularly for appellate lawyers. This decision also should send a clear message to trial courts: take extra care before excluding defense evidence.

FACTS: Mr. Tony’s defense at trial was that he acted in self-defense or at least without premeditation.  It was a plausible defense because the killing occurred during a knock-down, drag-out fight.  In support of this defense, Mr. Tony wanted to put on evidence that the decedent was high on methamphetamine at the time of the killing.  His theory of relevance was straightforward: meth makes people behave erratically- they can become crazy and violent- which supported the notion that the decedent was the first aggressor.  The trial judge, however, excluded the methamphetamine evidence on the ground that the defense had not proffered a proper, non-propensity purpose under Federal Rule 404(b).

HOLDING: The judge erred in excluding the defense evidence because defense counsel had proffered a proper purpose. But there are lots of other interesting points of law involving appellate procedure that the Tenth Circuit discusses in reaching its holding.

KEY TAKEAWAYS

Use this case if you are looking for law on the scope of permissible affirmance on alternative grounds

The government asked the court of appeals to affirm the conviction on the alternative ground that the meth evidence wasn’t relevant without expert testimony that (1) the decedent was actually high at the time of the fight and (2) meth makes people violent.  The defense responded with a legal argument: because any decision on evidentiary relevance is committed to the district court’s (not the appellate court’s) discretion, the Tenth Circuit could affirm on that ground only if it would be an abuse of the district court’s discretion to rule for the defense on the relevance issue.  This principle has long existed in the Tenth Circuit’s case law, but it was buried by dozens of cases that ignored it and affirmed evidentiary rulings on alternative grounds with no discussion of the discretionary nature of the decision.  This principle is now revived.

Use this case if you are looking to police the government’s burden of proof on harmless error

The government argued that excluding the meth evidence was harmless because the evidence at trial overwhelmingly established Mr. Tony had not acted in self-defense. On this point, the court first clarified that the government bears the burden of demonstrating that a preserved, non-constitutional error is harmless.  While the government had argued that the error was harmless with respect to self-defense, it had not argued that it was harmless with respect to the lack of premeditation.  The government’s failure to make this argument operated as a waiver.  This too is an important point of law – that the government waives harmless error by not arguing it.

Use this case if you are looking for law on why a new trial is the appropriate remedy for evidentiary error

The government argued that instead of remanding for a new trial, the circuit should have remanded the case to the district court to make findings on whether it would have excluded the meth evidence under Rule 403 as substantially more prejudicial than probative.  The court said no for two reasons.  The first was the trial had happened two years earlier, which would make it hard for the district court to put itself back in the position of making pretrial rulings.  The second reason was that remanding for findings would give the district court, eager to avoid a retrial, “an overwhelming temptation to rationalize the exclusion of the meth evidence under Rule 403.”  Op. at 11.  This is another principle that existed but was moribund in the circuit’s case law until this case reaffirmed it.

News You Can Use: Tenth Circuit holds mandating medication on supervised release requires particularized findings and compelling circumstances

Earlier this fall, in United States v Malone the Tenth Circuit confronted a special condition of supervised release that directed the defendant to participate in mental health treatment while on supervision.   Conditions of this sort are fairly routine, but this condition included a particularly problematic feature – it required Mr. Malone to “take prescribed medication as directed.”  In imposing the condition, the trial court gave no justification for it.

There was no objection to the condition in the district court, but the Tenth Circuit reversed for plain error.  The court explained that requiring a person to take psychotropic drugs – which this requirement, as part of a mental health condition, plainly did – intrudes on a significant liberty interest.  And when a court wants to impose a condition of supervised release that “invades a fundamental right or liberty interest,” it must make particularized findings that set out “compelling circumstances” that justify the condition.  The district court didn’t do so here, and because the record would not have supported the necessary findings in any event, the court directed the district court to strike the “offending language” from the judgment.

Key Takeaways:

  • Keep an eye out for conditions like this in PSRs that come your way.  As the circuit recognized, this condition was being “broadly imposed as a ‘stock’ special condition” in Kansas.  Similar conditions have also cropped up in other judicial districts.
    • To that end, take note of this language in Malone:

      “When “stock” special conditions are proposed and the defendant does not object, it is easy to overlook the constitutional implications at stake. But even when the defendant does not object, the district court must ensure that its conditions conform to the Constitution.”

  • Carefully review proposed conditions to see whether they infringe on fundamental rights or liberty interests.  Lots of conditions fit this description.  Examples include: occupational restrictions, restrictions on familial association, and possessing of legal, sexually explicit material.
  • Develop your record at sentencing.  Ask the district court to make the requisite findings and establish the compelling reasons to justify the condition.

Preserve This! SCOTUS to decide whether crime that can be committed recklessly can qualify as a “violent felony” under ACCA

Today, the United States Supreme Court granted certiorari in Walker v United States, out of the Sixth Circuit, to decide whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

As the petition for certiorari explains, there is a deep and widely recognized conflict in the courts of appeals over that question.

The Tenth Circuit takes the view, like the Sixth Circuit, that offenses that can be committed recklessly can nevertheless qualify as violent felonies under ACCA’s force clause. See, e.g., United States v Hammons (for purposes of determining whether an offense constitutes a valid ACCA predicate, “it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly”).

Make sure to preserve this issue!

News You Can Use: Tenth Circuit Holds Retaliation Against Witness Is Not a Crime of Violence for Purposes of 924(c)

This case arose out of the Johnson v. United States litigation that has been going on since 2015. After Johnson, Aaron Bowen filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his predicate conviction for witness retaliation was not a crime of violence for purposes of 18 U.S.C. § 924(c). The case was stayed pending the Supreme Court’s decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319 (2019), where the Supreme Court recently held the residual clause of Section 924(c) is void for vagueness.

The Tenth Circuit’s decision in Mr. Bowen’s case had several important holdings:

First, that Davis is a new substantive rule that is retroactively applicable on collateral review.

Second, that Mr. Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A).

Third, that Mr. Bowen is actually innocent of 18 U.S.C. § 924(c)(1)—because his predicate conviction does not fall under the force clause of 924(c), and the residual clause was invalidated by Davis.

ANALYSIS OF FORCE AGAINST PROPERTY

The key takeaway is that force against property is analyzed differently from force against persons for purposes of the 924(c) force clause.  Recall that, unlike its ACCA counterpart, the elements clause of 18 U.S.C. § 924(c) encompasses crimes that have as an element the use of physical force against not just people, but also other people’s property. After cases like Stokeling v United States and United States v Ontiveros, almost any force that causes bodily injury is enough to qualify under the force clause. This case, however, required the circuit to decide for the first time how much force is necessary to satisfy the statute when the force is directed at property.

The predicate crime here was federal retaliation against a witness, 18 U.S.C. § 1513(b)(2). A defendant may be convicted of that offense if either (1) with intent to retaliate, he knowingly causes or threatens to cause bodily injury to a witness or (2) knowingly causes or threatens to cause damage to a witness’s property. The Tenth Circuit concluded that witness retaliation through bodily injury qualifies as a crime of violence under § 924(c)(3)’s elements clause, but witness retaliation through property damage does not.

Although the underlying facts of Mr. Bowen’s predicate conviction encompassed actual force against persons and property, under the well-worn categorical approach, we all know that the facts don’t matter. In other words, to determine whether Bowen’s witness retaliation conviction has “as an element the use, attempted use, or threatened use of [violent] force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A), courts must look “only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” United States v Serafin, 562 F.3d 1105, 1107–08 (10th Cir. 2009).

A Sixth Circuit case, United States v Edwards, 321 F. App’x 481 (6th Cir. 2009), demonstrated that the federal witness retaliation could be satisfied by spray-painting a car. Citing to Moncrieffe v. Holder, the Circuit explained that the salient question was whether spray-painting a witness’s car qualifies as a crime of violence under § 924(c)(3)’s elements clause. 569 U.S. 184, 190–91 (2013) (“[W]e must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by [§ 924(c)(3)’s elements clause].”).

Ultimately, the Tenth Circuit agreed with Mr. Bowen that property “crimes of violence” under § 924(c)(3)(A) are those that include “violent force,” not merely those that “injure property.” Spray painting a car did not rise to the level of “violent force,” and so Mr. Bowen’s predicate conviction was not a crime of violence.

The decision was over a dissent by Judge McHugh, and also creates a split with the Second Circuit. See United States v Hill, 890 F.3d 51, 58 (2d Cir. 2018).

KEY TAKEAWAY

Force against property for purposes of 924(c)’s force clause requires violent force against property—mere property damage (such as spray-painting a car) does not satisfy the force clause. The Tenth Circuit didn’t elaborate on what sorts of offenses against property would qualify, but explained only that mere damage to property isn’t enough.