Case Summaries and Commentary by Federal Defenders of the Tenth Circuit

Supreme Court:

Bullcoming v. New Mexico, 2011 WL 2472799 (6/23/11) - By a 5-4 vote, with the majority opinion written by Justice Ginsburg and with a critical concurrence by Justice Sotomayor, the Court held the admission of a lab analyst's certification of the defendant's blood alcohol level, through the testimony of the analyst's supervisor, violated the Confrontation Clause. The certification was testimonial, and thus subject to Crawford's requirements of unavailability and cross-examination, because it was created for evidentiary purposes, not, as New Mexico claimed, pursuant to a non-adversarial public duty. That the statement was unsworn does not make it any less testimonial. It was just like the lab report in Melendez-Diaz. The certification is not excepted from Crawford's rule. It reported more than a machine-generated number. It also certified, among other things, that the analyst adhered to protocol and performed the test on the defendant's sample. And, in any event, the analyst's reporting of a number he saw is no different than a witness testifying the traffic light was red, for example. And clearly the Confrontation Clause applies to that. The obvious reliability of a statement would not excuse application of the Clause. The surrogate testimony of the supervisor could not communicate what the analyst observed and cross of the supervisor could not expose any incompetence or dishonesty of the analyst, e.g. as to why the analyst was on unpaid leave. Nor did the state assert the supervisor had any independent opinion about the defendant's BAC. The Clause cannot be dispensed with just because on the whole the interests of the Clause may have been served and the trial seemed to be fair overall.

Justice GInsburg, joined only by Justice Scalia, went on to explain that the decision would not wreak havoc. They noted labs could preserve samples, which a new analyst could retest. They rejected the notion the state could require the defendant to initiate retesting. They do say states could require the defendant to give notice that s/he demands the state call the report's author. They noted the paucity of cases going to trial and the likelihood of stipulations because live expert testimony might hurt the defendant's case.

Justice Sotomayor's dissent indicates this case may be as far as the S. Ct. is willing to go in applying Crawford. She stresses the limited reach of the decision. She opined that reliability, hearsay rules and formality are relevant in determining the confrontation issue. She explained what this case was not about. (1) The state did not suggest an alternative purpose for the certification, such as where medical reports are created for treatment purposes. (2) The witness did not have even a limited connection to the scientific test at issue, such as observing some of the analyst's conduct of the test. (3) This was not a situation where an expert is asked for his expert opinion about an unadmitted report. (4) The state did not just present machine-generated results. Thus, it may well be that Justice Sotomayor will side with the prosecution under slightly different circumstances.

In dissent, Justice Kennedy, joined by Justices Roberts, Breyer and Alito, criticizes Crawford, extolls the reliability of scientific evidence. predicts havoc will reign and suggests the solution to bad lab work is proper lab procedures, not confrontation at trial.

U.S. v. Juvenile Male, 2011 WL 2518925 (6/27/11) (per curiam) - The case presented the question whether SORNA violates the Ex Post Facto Clause when applied to juveniles adjudicated as delinquent before SORNA's enactment. But in a 5-3 decision (Justice Kagan recused) the Court found the case was moot when the 9th Circuit decided it. The defendant challenged the imposition of sex offender registration, supervised-release conditions. But the order requiring him to register had expired on his 21st birthday. Pursuant to the certified question procedure, the Montana S. Ct. opined that the defendant would have to register under state law, whether or not the federal registration condition was valid. So the defendant did not meet his burden to identify an ongoing collateral consequence of the order he was challenging. That a favorable decision might serve as a useful precedent in a hypothetical lawsuit challenging Montana's registration requirement did not save this case from mootness. And the defendant's possible duty under SORNA to register is not a collateral consequence of the order he challenged, but rather independent of it. And the issue is not capable of repetition and evading review because the over-21 defendant will never again be subject to an order imposing special conditions of juvenile supervision. Justices Ginsburg, Breyer and Sotomayor would have remanded the case to the circuit court to decide the mootness issue.

Cert Grants:

U.S. v. Jones, 2011 WL 1456728 (6/27/11) - Whether the installing of a GPS tracking device and/or the prolonged use of that device violates the Fourth Amendment. The D. C. Circuit had ruled the month-long use of the device was unconstitutional.

Messerschmidt v. Millender, 2011 WL 2518829 (6/27/11) - A § 1983 case that might have implications for the good faith exception to the exclusionary rule. The questions presented concern when are officers entitled to qualified immunity with respect to executing an overbroad warrant that is not supported by probable cause and whether the "so lacking in indicia of probable cause" exception to Leon is too hard to apply and too tough on officers.

Martel v. Clair, 2011 WL 1481309 (6/27/11) - Under what circumstances is a capital § 2254 petitioner entitled to new counsel.

10th Circuit:

U.S. v. Ransom, 2011 WL 2508235 (6/24/11) (Kan.) (Published) - A case that demonstrates the importance of truthful timesheet reporting. The 10th upholds a HUD employee's convictions for wire fraud and theft of public money for falsifying his timesheets. He indicated he was working during hours he was actually playing tennis or gambling at a casino. The 10th rejected the defendant's argument that, as a salaried person, his hours had no direct relation to his paycheck. His time records did affect his leave balances and leave has a monetary value. Contrary to the defendant's claims, he had to take leave for absences for partial days. The statute required him to work particular hours. So it didn't matter whether he worked lots of hours outside of those time periods. He had the necessary intent because there was evidence he had notice that his paychecks were tied to his time records, (including his disciplining of employees for abusing timekeeping procedures and an angry confrontation with an assistant when she encouraged him to take leave for time spent playing tennis) and that he had to be in the office during core working hours. Considering the instructions as a whole, the instruction that federal employees must either work the assigned hours or account for absent time with approved leave did not lead the jury to believe he could be convicted just because he didn't take leave during working hours.

U.S. v. Martinez-Haro, 2011 WL 2465843 (6/22/11) (Utah) (Published) - The 10th had jurisdiction to review an order requiring a second competency examination. The d. ct. had authority to order more than one examination. 18 U.S.C. § 4247(b) provides for more than one examiner and does not restrict the court from ordering multiple exams and multiple hearings. The 10th would be concerned if the additional exam was ordered to allow the government to shop for a mental health expert who would find the defendant competent. But here the initial examiner, while finding the defendant incompetent, suggested the defendant be examined by an expert who spoke Spanish, the defendant's native language.

Waugh v. Holder, 2011 WL 2464779 (6/22/11) (Published) - Padilla does not impose on the government the burden of proving a conviction is valid. It is not appropriate for the IJ or the BIA to determine whether a conviction is invalid under Padilla or any other constitutional theory. Collateral attacks on convictions belong in the jurisdiction where the conviction was obtained. But the government need not wait for collateral proceedings in that jurisdiction to be finished before removing the alien. An alien is removable as soon as the trial court enters a formal judgment of guilt.

Toevs v. Reid, 2011 WL 2437782 (6/20/11) (Colo.) (Published) - Indefinite placement in an administrative segregation level system (in this case for 7 years) triggered due process protections. The inmate did not receive meaningful periodic review of his progression through levels 1-3 because the prison never gave him reasons why he was recommended for or denied progression in order to provide a guide for his future behavior. And for levels 4-6 there was no review at all in violation of due process. But the defendants were entitled to qualified immunity because the 10th had not previously defined what meaningful periodic review meant in a stratified incentive program.

U.S. v. Jordan, 2011 WL 2530926 (6/27/11) (unpub'd) - The d. ct. did not err when it imposed an obstruction-of-justice enhancement where the defendant sent letters to the prosecutor threatening to seize the prosecutor's assets and exact certain penalties, even after the d. ct. told him to stop doing it. The letters were harassing and obstructive.

U.S. v. Rubio-Ayala, 2011 WL 2489990 (6/23/11) (Kan.) (unpub'd) - A motion to enforce a plea agreement filed before the defendant files an opening brief is not premature. The whole point of the waiver is to save the government the trouble of full-fledged briefing.

U.S. v. Senninger, 2011 WL 2455662 (6/21/11) (Colo.) (unpub'd) - Mail fraud convictions established the defendants engaged in the overall scheme to defraud the IRS and therefore the loss calculation and restitution were not limited to the conduct related to the specific counts of conviction.