Articles Posted in U.S. 10th Circuit Court of Appeals

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Mr. and Mrs. Melot owed millions of dollars in federal taxes. Billy Melot was serving time in federal prison for tax crimes. The debt led the United States to foreclose on the Melots’ real properties, and the Melots tried to stop the foreclosure. Sanctions were imposed because of the methods used by the Melots in relation to their attempts to stop the foreclosure: the district court regarded them as fraudulent. The disagreement began when the district court reduced the tax assessments to judgments and ordered the sale of the Melots’ real properties. That order prompted a motion to intervene by Steven Byers, who filed documents asserting liens on the property. The documents were mailed from the city where the Melots’ properties were located (Hobbs, New Mexico). The government suspected fraud and collaboration with the Melots, pointing out to the court that: (1) Byers lived in prison; (2) he could not own any liens because he was destitute; (3) the Melots never disclosed any liens; (4) Mrs. Melot had signed Byers’ name on the lien and motion to intervene; and (5) the New Mexico address listed for Byers was actually the home of Mrs. Melot’s friends. At the hearing on the motion to intervene, Byers moved to withdraw his motion for lack of proof. The court denied the motion to withdraw, and the government presented evidence tending to show that the Melots and Byers created a scheme to derail the foreclosure. Mrs. Melot refused to answer questions, invoking the Fifth Amendment privilege against self-incrimination. The magistrate judge certified criminal contempt by the Melots. More than a year later, the district court issued its order addressing the contempt certification with sanctions including removal of Mrs. Melots from the property, reimbursing the government's costs for the hearing, striking of the Melots' pending motions, and filing restrictions. The Melots argued on appeal to the Tenth Circuit that the district court violated the Fifth Amendment’s Due Process Clause by imposing sanctions without notice and an opportunity to be heard. The Tenth Circuit agreed, reversed and remanded. View "United States v. Melot (Katherine), et al" on Justia Law

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Defendant Richard Trent appeals his conviction and sentence for being a felon in possession of a firearm. He raises five issues, on of which raised a question of whether the Tenth Circuit could apply what is called the “modified categorical approach” to determine whether his prior felony is a “serious drug offense” under the Armed Career Criminal Act (ACCA). On the ACCA issue the Tenth Circuit held that the general Oklahoma conspiracy statute was divisible and therefore subject to the modified categorical approach, and that Defendant’s prior violation of that statute was a serious drug offense because the object of the conspiracy was manufacturing methamphetamine. View "United States v. Trent" on Justia Law

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Using peer-to-peer file-sharing software, Defendant-Appellant Jory Nance downloaded child pornography on his laptop computer from sometime in 2009 through April 2012. He also used this software to share child pornography with others, including an Edmond, Oklahoma detective who was able to download eight files containing child pornography from Nance during March and April 2012. This resulted in the United States charging Nance with eight counts of transporting child pornography. A jury convicted Nance of multiple counts of transporting child pornography and receiving or attempting to receive child pornography. He challenged those convictions, contending: (1) the district court erred in admitting evidence of his uncharged bad acts under Federal Rule of Evidence 404(b)(2); and (2) there was insufficient evidence for a jury to find that he attempted to receive child pornography. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Nance" on Justia Law

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In 2006, United States Postal Inspectors learned Crosby Powell had deposited checks stolen from the United States mail into his accounts at TCF Bank, UMB Bank, and Wells Fargo. An investigation revealed Powell had altered payee information or forged endorsements on some of the stolen checks. The United States obtained a superseding indictment charging Powell with eleven counts of uttering or possessing forged checks, and seventeen counts of possessing stolen mail. At trial, the government sought to prove the forged checks were “of an organization” by presenting evidence that each bank into which the forged checks were deposited was a federally insured bank operating in interstate commerce. The jury convicted Powell on the first eleven counts set out in the indictment. In his appeal to the Tenth Circuit, Powell raised three challenges to his convictions, all of which were raised for the first time on appeal, all of which were raised on the same premise: at no point during his possession or utterance of the forged checks were the checks "of" the banks into which they were deposited. The Tenth Circuit agreed that the forged checks were not "of" the depository banks. Because Powell did not raise his arguments before the district court, however, he was not entitled to relief unless he could "successfully run the gauntlet created by our rigorous plain-error standard of review." The Court found that Powell could not satisfy this burden as to all counts of conviction. Accordingly, the Court: (1) affirmed Powell’s convictions as to Counts 10, 13, and 20; and (2) remanded the case to the district court so it could vacate the remaining convictions and take any other necessary actions. View "United States v. Powell" on Justia Law

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Gustave Brune repeatedly failed to update his sex offender status as required by Kansas and federal law. When arrested for these failures, the arresting agents found images of child pornography on Brune’s computer. He was eventually indicted in federal court for failure to update the sex offender registry and possession of child pornography, and convicted on both charges. Brune argued on appeal: (1) that a subsection of the Sex Offender Registration and Notification Act (SORNA) was unconstitutional; and (2) the statute that criminalizes possessing, or accessing with the intent to view, materials containing images of child pornography was unconstitutionally overbroad because it proscribed significant amounts of speech and conduct protected by the First Amendment. After review, the Tenth Circuit affirmed the district court's decision to deny Brune's motions to dismiss his indictment. View "United States v. Brune" on Justia Law

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Defendant Aaron Heineman was convicted after a bench trial on one count of sending an interstate threat. The district court found that in 2010 and 2011, Defendant sent three e-mails espousing white supremacist ideology to a professor at the University of Utah. The first two e-mails did not contain threats, but the third made the professor fear for his safety and the safety of his family. Defendant argued that his conviction violated the First Amendment because the court did not also find that he intended the recipient to feel threatened. Agreeing with Defendant, the Tenth Circuit reversed and remanded. View "United States v. Heineman" on Justia Law

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Defendant-Appellant Vincent Watson was convicted by a jury of five counts relating to the cultivation and distribution of marijuana. He argued on appeal: (1) that his second counsel provided ineffective assistance by failing to adequately pursue, and communicate with him about, the possibility of entering into a plea agreement with the government; (2) that the district court violated his rights under the Speedy Trial Act by granting the government an ends-of-justice continuance following his co-defendant’s decision to plead guilty and cooperate with the government a week before trial was scheduled to begin; and (3) that the district court improperly admitted testimony regarding Mr. Watson’s previous cultivation and distribution of marijuana. Finding no reversible error as to any of defendant's contentions on appeal, the Tenth Circuit affirmed the district court. View "United States v. Watson" on Justia Law

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An election dispute arose about which individuals were properly elected or appointed to govern the Thlopthlocco people. The Tribal Town filed suit in the tribal court of the Muscogee (Creek) Nation and, accordingly, voluntarily submitted to that court's jurisdiction. The Tribal Town subsequently concluded it did not want to maintain its suit in tribal court and dismissed its claims. But the defendant in that suit had, by that time, filed cross-claims. Arguing that the Tribal Town's sovereign immunity waiver did not cover proceedings on the cross-claims, the Tribal Town attempted to escape Muscogee court jurisdiction, but, in various decisions, several judges and justices of the Muscogee courts held that they may exercise jurisdiction over the Tribal Town without its consent. The Tribal Town then filed a federal action in the Northern District of Oklahoma against those Muscogee judicial officers, seeking to enjoin the Muscogee courts' exercise of jurisdiction. The district court dismissed the case, finding that the federal courts lacked subject matter jurisdiction, defendants were entitled to sovereign immunity, the Tribal Town had failed to join indispensable parties, and the Tribal Town had failed to exhaust its remedies in tribal court. Upon review, the Tenth Circuit concluded, however, that the Tribal Town presented a federal question and that the other claims do not require dismissal. But the Court agreed the Tribal Town should have exhausted its remedies in tribal court while its federal court action was abated. View "Thlopthlocco Tribal Town v. Stidham, et al" on Justia Law

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The issue this case presented for the Tenth Circuit's review centered on a district court's authority to grant a sentence reduction under 18 U.S.C. 3582(c)(2). Defendant Joseph White was initially charged with 16 drug- and gun-related counts. The government agreed to drop all remaining counts against him in exchange for his pleading guilty to possessing a firearm in furtherance of a drug trafficking crime. White was then sentenced to a term of imprisonment outside of the advisory guideline range: after the sentencing court imposed a mandatory 60-month sentence for all section 924(c) convictions, it exercised its discretion and departed upward by an additional 87 months to account for the drug trafficking conduct that gave rise to White's conviction but which had been dismissed pursuant to his plea agreement. The 87-month figure was computed under old crack cocaine guidelines as if White had in fact been convicted of possessing crack. When the Sentencing Commission retroactively lowered the crack cocaine guidelines in response to the Fair Sentencing Act of 2010, White filed a pro se section 3582(c)(2) motion and requested that the district court reduce his 87-month departure to accord with the new crack cocaine guidelines. The district court disagreed with White's argument that the rejected crack guidelines played a role in his original sentence, so that he should have been eligible for a sentence reduction to correct that disparity. Recognizing that the Sentencing Commission enacted a policy statement that expressly precluded courts from reducing a departure portion of an originally imposed sentence, the court denied White's sentence modification motion. White appealed, arguing that the policy statement could not mean what it said: either because it was inconsistent with the plain language section 3582(c)(2), or because it produced an absurd result, or if consistent and rational, because it violated the Constitution's nondelegation and separation of powers principles. The Tenth Circuit concluded after review of the case that White did not show that he was sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. "It is well-settled in this circuit, and elsewhere, that the range upon which a sentence is 'based' is the range produced under the guidelines' sentencing table after a correct determination of the defendant's total offense level and criminal history category but prior to any discretionary departures." The district court did not err in holding that White was ineligible for a sentence reduction under 3582(c)(2). However, his motion should have been dismissed, not on the merits, but on lack of jurisdictional grounds. View "United States v. White" on Justia Law

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After methamphetamine was recovered from his carry-on luggage on a Greyhound bus, Defendant-Appellant Peter Tubens was charged with possession of methamphetamine with intent to distribute. Tubens pled not guilty and filed a motion to suppress the evidence against him, asserting that it had been obtained in violation of the Fourth Amendment. Following a hearing and full briefing by both parties, the district court issued a written decision denying the motion. Tubens proceeded to trial, where he was found guilty by jury and subsequently sentenced to 240 months' imprisonment, followed by sixty months' supervised release. Tubens appealed, reasserting his claim that the evidence was obtained in violation of the Fourth Amendment. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Tubens" on Justia Law