Justia Criminal Law Opinion Summaries

Three Albuquerque Police Department officers shot plaintiff-appellant Stephan Cordova after he raised a gun in their direction. Cordova survived and was charged with assault, although the charges were later dismissed on speedy trial grounds. Cordova then brought this action under 42 U.S.C. 1983, claiming primarily: (1) that the charges of assault were brought in bad faith; (2) that the police unreasonably prevented interaction with his family when he was in a hospital recovering from his wounds; and (3) the police used excessive force by firing on him without an adequate warning. The district court allowed only the Fourth Amendment excessive-force claims to go to trial, where a jury returned a verdict for the officers. The Tenth Circuit found no error in the district court’s conclusions. View "Cordova v. City of Albuquerque" on Justia Law

Petitioner Fabian Rangel-Perez challenged the Board of Immigration Appeals’ (“BIA”) characterization of his Utah misdemeanor conviction as an “aggravated felony” under the Immigration and Nationality Act (“INA”). The BIA concluded that Rangel-Perez’s Utah conviction for unlawful sexual activity with a minor fell within the INA’s category of “aggravated” felonies that includes “sexual abuse of a minor” offenses. Rangel-Perez argued that his prior Utah conviction is not an “aggravated felony” under the INA because the INA’s generic “sexual abuse of a minor” offense required proof of both mens rea and a four-year age differential between the victim and the perpetrator, yet neither was an element of the Utah statute under which he was convicted. After review, the Tenth Circuit agreed with Rangel-Perez that the INA’s category of “aggravated” felonies for “sexual abuse of a minor” included only offenses that require proof of at least a “knowing” mens rea or scienter. Therefore, Rangel-Perez’s Utah conviction was not a “sexual abuse of a minor” offense under the INA. Thus, the Court reversed the BIA’s decision to treat Rangel-Perez’s prior conviction as an “aggravated felony” and remanded this case for further proceedings. View "Rangel-Perez v. Holder" on Justia Law

Defendant Kevin Smith was convicted by jury on eight counts of distributing child pornography and one count of possessing child pornography. He was sentenced to 210 months’ imprisonment. Defendant raised two grounds for appeal: (1) that the eight counts of distribution were multiplicitous, in violation of the Fifth Amendment’s prohibition on double jeopardy; and (2) the district court violated Fed. R. Crim. P. 32(i)(3)(B) at sentencing when it adopted the presentence-report (PSR) account of his pending child-rape charge over his pro se objection without making a finding based on the preponderance of the evidence. The Tenth Circuit affirmed: Defendant did not raise the double-jeopardy issue below and he has not shown plain error; and the district court’s refusal to address a pro se objection by a defendant represented by counsel was not an abuse of discretion and, in any event, was harmless. View "United States v. Smith" on Justia Law

Defendant Myron Harry appealed his conviction of sexual assault at the home of friends while the victim was sleeping after a party. On appeal, he argued that all but one of his text messages were used against him at trial, but none of the host’s messages were presented, therefore his right to due process was violated by the failure to preserve text messages sent to him by the host, whose cell phone had been provided to officers as evidence. The other two challenges related to the district court’s grant of the government’s pretrial motion in limine to exclude any evidence that the victim flirted with Defendant during the party. Finding no reversible error in the trial court record, the Tenth Circuit affirmed. View "United States v. Harry" on Justia Law

In 2015, Petitioner Embry Loftis received a certificate of appealability to appeal the district court’s dismissal of his section 2254 habeas petition as time-barred. The Tenth Circuit considered the merits of Petitioner’s argument that he was entitled to equitable tolling of the statute of limitations under the unique circumstances of this case. After review, the Tenth Circuit found that Petitioner made reasonable, diligent efforts to comply with state law under the unique circumstances he faced, and the state district court “led [him] to believe that he . . . had done all that [wa]s required under the circumstances” by granting his request for an extension of time to file his appeal. "The record clearly shows that Petitioner did not sleep on his federal rights, but rather diligently pursued his habeas claims through a state process that he reasonably believed to be sufficient." The Court concluded that the district court abused its discretion in denying Petitioner’s request for equitable tolling of the statute of limitations in this case. Accordingly the district court’s dismissal of Petitioner’s habeas petition as time-barred was reversed, and the case remanded for further proceedings. View "Loftis v. Harvanek" on Justia Law

Jesus Munoz was charged with possession with intent to distribute marijuana. He pled guilty and was sentenced to time served or thirteen days, whichever was less, and two years of supervised release. The term of the supervised release included twelve “standard” conditions of supervised release and two “special” conditions. On appeal, Munoz raised substantive and procedural challenges to twelve of the fourteen conditions. Rejecting all, the Tenth Circuit affirmed. View "United States v. Munoz" on Justia Law

Oklahoma state prisoner Antonio Milton requested a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. 2254 petition for habeas relief. In 2007, Milton was prosecuted in two separate cases pending simultaneously before a state district court: a charge for crack cocaine trafficking; the other, involvement in a drive-by shooting. Because Milton had two earlier felony drug-trafficking convictions, the crack-cocaine-trafficking charge mandated life without parole if convicted. The State extended Milton at least one plea offer that covered at least one of Milton’s two cases. Milton ultimately rejected the offered plea deal(s) and went to trial in the drug-trafficking case, where he was convicted. After this, the State let the drive-by-shooting case lapse, leaving the court to dismiss it for lack of prosecution. The Oklahoma Court of Criminal Appeals (OCCA) affirmed all of Milton’s convictions and sentences, including the drug-trafficking conviction with its mandatory life-without-parole sentence. Later, Milton filed a pro se application for post-conviction relief and requested an evidentiary hearing in Oklahoma state district court. Relevant here, Milton argued “that his appellate counsel rendered ineffective assistance by failing to assert on direct appeal that Milton’s trial counsel was ineffective for failing to inform Milton of a plea-bargain offer made by the prosecution prior to the preliminary hearing.” The state district court denied Milton’s application for post-conviction relief on his ineffective-assistance-of-appellate-counsel claim. As Milton’s application for post-conviction relief proceeded through Oklahoma courts, the courts considered conflicting evidence about offers for a 20/20 Deal, a 25/20 Deal, and a supposed 23-year deal. The timing, communication, and existence of each of these deals were the basis of Milton's grounds for appeal here: had one of Milton's defense counsel offered Milton the 20/20 Deal minutes before the preliminary hearing, Milton could not have suffered prejudice from any earlier failure by his counsel to communicate a less favorable 23-year offer. But had defense counsel offered Milton the 25/20 Deal before the preliminary hearing, Milton could have suffered prejudice if his counsel failed to communicate a more favorable 23-year deal before the preliminary hearing. But the state courts denied Milton relief without ever determining whether the 23-year deal was ever offered, and if so, whether Milton’s counsel had told Milton about it. Milton sought a COA to appeal the denial of habeas relief, arguing again, he received ineffective assistance of trial and appellate counsel. New evidence discovered at the federal evidentiary hearing assisted the Tenth Circuit's de novo review of Milton’s ineffective-assistance claims, and the Court concluded that all of them lacked merit. Accordingly, the Court denied Milton’s request for a COA on all bases presented. View "Milton v. Miller" on Justia Law

Defendant Mary Vernon was a physician licensed to practice in the State of Kansas. She co-authored a book with the late Dr. Robert Atkins, famous for a low-carbohydrate diet. Vernon also worked as the medical director for several nursing home facilities in the northeast Kansas area, and also provided consulting services to various entities, including the University of Kansas. In April 1999, the Internal Revenue Service (IRS) assigned Revenue Officer Joni Broadbent to collect from Vernon unpaid taxes for the 1997 tax year. Broadbent was subsequently assigned by the IRS to collect from Vernon unpaid taxes for the tax years 1991 through 1996. Although Vernon filed a tax return for 1997, she did not file a tax return for the years 1991 through 1996. Together, the unpaid taxes, penalties and interest for the tax years 1991 through 1997 totaled $1,432,299.38. After processing late returns, the IRS adjusted the amount owed by Vernon downwards to approximately $1.1 million. Vernon did not comply with deadlines set by the IRS for payment. As a result, Broadbent levied various investment and retirement accounts that Vernon held, and eventually seized Vernon's personal residence. At the time the IRS moved to seize Vernon's personal residence, the amount of unpaid taxes was approximately $543,015.11. The federal tax lien was eventually released so that Vernon could sell the residence without encumbrance. Vernon, unbeknownst to Broadbent and the IRS, arranged for her domestic partner, Sara Wentz, to purchase the residence for a price of $250,000. The proceeds from the sale went to the IRS, but still did not satisfy Vernon’s tax liability in full. Vernon set up a new company, through which she could continue her work as a consultant, Rockledge Medical Services. Wentz was Rockledge's sole shareholder, and Vernon worked as a volunteer, thus receiving no income for her work. Vernon and Wentz disregarded corporate formalities in dealing with Rockledge’s contracts and finances. At some point, the IRS began investigating Vernon from a criminal standpoint. And that investigation ultimately led to the indictment for tax evasion that was issued in this case. Vernon was sentenced to a total term of imprisonment of 41 months, to be followed by a three-year term of supervised release, and ordered to pay $311,157 in restitution to the Internal Revenue Service. Vernon appealed her convictions and sentences. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Vernon" on Justia Law

Defendant Brian Fager appealed the denial of his Motion to Suppress a firearm police officers discovered on his person during a roadside frisk. A Topeka Police Department deputy stopped defendant's car for a turn signal violation near an apartment complex in a high-crime area of Topeka. The deputy noticed defendant’s eyes were watery, his speech was soft, and an unopened beer can sat in the center console of the vehicle (signs that indicated defendant may have been impaired). Furthermore, defendant's passenger continually leaned forward in a way that made the deputy think the passenger was trying to obstruct his view of defendant, an action which the deputy found suspicious. Although the deputy discovered Defendant had at least one prior DUI, he determined defendant was not then impaired. The deputy asked for and received permission to search defendant's car. Prior to the search, the deputy conducted a pat-down search of defendant, when he discovered defendant was carrying a firearm. Defendant would ultimately be indicted as a felon in possession of a firearm, and he moved to suppress evidence of the firearm arguing the pat-down search was unlawful. The issue this case presented for the Tenth Circuit's review was whether the officers’ concerns for their own safety gave them the requisite reasonable suspicion to frisk Defendant. The Court held that these concerns sufficiently justified the frisk under the totality of the circumstances and affirmed. View "United States v. Fager" on Justia Law

In May 2009, a federal grand jury indicted Claud Koerber on one count each of mail fraud, wire fraud, and tax evasion. In November 2009 and September 2011, the grand jury returned two additional superseding indictments, ultimately charging Koerber with 20 counts related to his alleged Ponzi scheme. Koerber’s case remained pending for more than five years without ever reaching trial. In August 2014, on Koerber’s motion, the district court found a violation of the Speedy Trial Act (STA), exercised its discretion and dismissed Koerber’s case with prejudice. The government appealed, arguing to the Tenth Circuit that the district court abused its discretion in dismissing the case with prejudice. Although the Tenth Circuit disagreed with most of the government’s arguments, the Court concluded that the district court abused its discretion in two respects: (1) by including improper factors in its consideration of the seriousness-of-the-offense factor, and (2) by failing to fully consider Koerber’s own actions that may have contributed to the speedy-trial delay. Accordingly, the Tenth Circuit reversed the district court’s order dismissing the case with prejudice, and remanded the case for reconsideration. View "United States v. Koerber" on Justia Law