Unpublished Decisions

Thomas v. Parker, 2009 WL 4042667 (11/23/09) (unpub'd) - The 10th affirms granting of habeas challenging the revocation of 30 days of good time credits for possession of contraband, i.e., a prayer cap. The prisoner alleged that the warden asked him to withdraw a grievance against a mail room clerk. When the prisoner refused, the warden pointed to the prisoner's prayer cap, which the prisoner had been wearing for a year, and declared it contraband. The warden never denied the allegations but instead just said the standard practice is that the warden would not see the grievance. That did not refute the prisoner's allegations, which established that the discipline was imposed in retaliation for the prisoner's exercise of his grievance rights.

U.S. v. Sun, 2009 WL 4068439 (11/25/09) (unpub'd) - The 10th affirms a child pornography conviction. The d. ct. did not abuse its discretion when it refused to admit under the statement-against-interest and catch-all hearsay exceptions deposition statements by defendants' family members who lived in China. The cousin's statement that he downloaded pornography on the defendant's computer was not against his criminal interest and he refused to answer cross as to whether he downloaded child porn. The defendant's father's statement that the cousin told him the cousin put child porn on the defendant's computer was too unreliable, given the father's bias towards his son. And, in any event, whatever the cousin downloaded didn't preclude the defendant from being guilty of knowingly possessing the child porn, concerning which there was a lot of evidence, including the defendant's admission. The case would be a good case to look at for helpful language and case law to contest the government introducing hearsay under the catch-all provision.