Rocky Mountain Appellate Blog

Nacchio Sentence Overturned

The Tenth Circuit's whopping 59-page opinion, written by Judge Holmes and joined by Judges Kelly and McConnell, is here.  The upshot (assuming the government does not obtain an en banc reversal of the panel's decision) is likely to be a shorter prison sentence for Nacchio.

10th Circuit Rejects Second Amendment Challenge to Felon-in-Possession Gun Law

In U.S. v. McCane, the Tenth Circuit yesterday addressed a Second Amendment challenge to 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing firearms.  Although the Supreme Court in Heller recently held that the Second Amendment provides an individual right to possess a handgun, the Court also explicitly stated in dicta that "nothing in our opinion should be taken to case doubt on longstanding prohibitions on the possession of firearms by felons."  On that basis, the majority rejected the defendant's Second Amendment challenge to his 922(g)(1) conviction.

Judge Tymkovich, however, wrote a short but very interesting concurring opinion in which he questioned whether the Heller dictum concerning felon-in-possession laws can be squared with its underlying holding.  In particular, he cited several law review articles that have described the historical support for felon-dispossession laws as "surprisingly thin."  These articles contend that the weight of historical evidence suggests such laws are creatures of the 20th century -- not, as some have claimed, the 18th century.  He also criticized the Heller dictum on the ground that "[t]he Court's summary treatment of felon dispossession . . . forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope."

In Less than 10 Pages, Tenth Circuit Reverses Denial of Motion to Intervene

In a wonderfully (and, alas, unusually) concise opinion, the Tenth Circuit today reversed a district court's denial of a mining company's motion to intervene.  WildEarth Guardians v. United States Forest Service, No. 09-1089.  An environmental group challenged the government's approval of the mining company's plans to vent methane gas from its mine, which lies beneath the Grand Mesa, Uncompahgre and Gunnison National Forests.  The mining company moved to intervene, and the district court denied the motion.

The Tenth Circuit, per Judge Hartz, reversed, with an analysis spanning less than five pages.  The court held, unsurprisingly, that the mining company had shown the requisite potential impairment of its interests.  More interestingly, the court also held that the mining company should not be required to rely on the government to defend its interests -- particularly where, as the court observed, "the government has multiple objectives and could well decide to embrace some of the environmental goals of [the plaintiff]."  Although environmental groups might scoff at this observation, this decision appears to slam the door on any argument that intervenors' economic interests can ever be adequately represented by the government for purposes of Rule 24, particularly in environmental cases.

The Science of Fingerprinting

The Tenth Circuit issued a decision yesterday involving a thorough exploration of the science of fingerprint evidence.  United States v. Baines, No. 08-2098.  The sole issue on appeal was the defendant's contention that the district court erroneously admitted fingerprint evidence tying the defendant to a drug crime. 

Although studies cited by the government show that there is almost no chance that two people will have the same fingerprint, the defendant's challenge involved the question of matching fingerprints. According to the defendant, typically a "latent" fingerprint pulled from a crime scene is only 22% of a "known" print (i.e., a print specifically taken for identification purposes).  As to the matching issue, however, the government's expert testified that the FBI "made, on average, about one erroneous identification every 11 years."  (I find that hard to believe.  How does one go about identifying mis-identifications -- the unknown unknowns, as Donald Rumsfeld would say?)

The government prevailed in convincing the Tenth Circuit that the fingerprint evidence was admissible -- but just barely.  Although the Third Circuit has ruled the same way, it would not be surprising if a circuit split developed on this issue.  Daubert notwithstanding, the real basis for the court's decision is in the last paragraph of the court's analysis:

In closing, we echo the thoughts of Judge Pollak, who said regarding the desirability of research to provide the scrutiny and independent verification of the scientific method to aid in assessing the reliability of fingerprint evidence, that such efforts would be "all to the good.  But to postpone present in-court utilization of this 'bedrock forensic identifier' pending such research would be to make the best the enemy of the good.  United States v. Llera Plaza, 188 F. Supp. 2d 549, 572 (E.D. Pa. 2002).

Finally, Something Interesting in the Sotomayor Hearings

Tony Mauro at the National Law Journal has a brief update on the Sotomayor hearings.  Under questioning from Senator Specter, Judge Sotomayor indicated that she, like Justice Alito, would probably opt out of the Supreme Court's cert pool.  For nearly four decades the Supreme Court justices have "pooled" their clerks together for the purpose of summarizing and recommending action on petitions for certiorari.  The one-clerk summaries are then distributed to all the members of the pool.  Except for the clerks of Justices Stevens and Alito, all the other justices' clerks participate in the pool.

The use of the cert pool has led to concerns that inexperienced young clerks have too much influence on which cases the Court decides to take.  Judge Sotomayor's testimony is interesting because it suggests that there will soon be a third Supreme Court Justice who will opt out of the cert pool.

Kennedy's Court

A news article in today's National Law Journal reports on a recent panel discussion among the most prominent Supreme Court advocates in the country.  The panel's unsurprising consensus:  it's still very much Kennedy's Court.  As one panelist, Pamela Harris of Georgetown's Supreme Court Institute, described it, Chief Justice Roberts and his fellow conservatives are "going just as far to the right, and just as fast, as Justice Kennedy will let them."

Trial Skills

In United States v. Burke (No. 08-8033), the Tenth Circuit noted a failure on the part of the prosecutor to timely disclosure exculpatory Brady material.  The court was “greatly concerned” by this failure and held that “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process when an earlier disclosure would have created a reasonable doubt of guilt.”  However, the Tenth Circuit ultimately affirmed the defendant’s conviction on the basis that he was unable to show that he was prejudiced by the delay.

 

While the court’s ruling is significant for criminal attorneys it also highlighted the importance of care during trial.   In Burke the government was ordered to disclose all immunity agreements with testifying witnesses.  It failed to disclose an “informal” agreement with one witness, and even elicited affirmative testimony that no such agreement existed.  Defense counsel learned of the existence of the “informal” agreement only by “immediately” recognizing the significance of the following exchange during the prosecution’s direct examination “[Prosecutor]: Okay. Now, you gave an interview as part of your plea agreement – [Witness]: Uh-huh.”

Jury Selection and Harmless Error

Hatfield v. Wal-Mart Stores, Inc., (08-3233) is an excellent example of the lack of  an effective remedy when a District Court fails to strike a juror for cause.  In this case, the District Court erroneously refused to strike two jurors for cause even though “[a]t the time of trial, one of the challenged prospective jurors . . . was employed as a lift mechanic at [Defendant] Wal-Mart. The other challenged juror . . . disclosed during voir dire that she was a current Wal-Mart employee and that she had previously worked at the store where the incident occurred.  . . . [She] also disclosed that she was once co-manager with  . . . the Wal-Mart corporate representative and witness, and she knew several other Wal-Mart employees on the witness list.”  The plaintiff was thus forced to use preemptory challenges to remove these witnesses and, by virtue of having exhausted her preemptory challenges, was forced to seat a jury that included a juror who worked with the wife of the defense lawyer, and a juror who had previously worked in grocery stores and the retail industry. Under a harmless error analysis, the Tenth Circuit found that the presence of these jurors ‘did not have a “substantial influence on the outcome of the trial,’ nor does it leave one in ‘grave doubt as to whether it had such effect.’  The Tenth Circuit appears to have reached this conclusion in part because “at the time Plaintiff did not object to the composition of the jury as seated.”