Lucio-Rayos v Sessions

Lucio-Rayos sought review of the immigration appeals board decision holding him ineligible for withholding of removal based on a theft conviction. The panel rejected his petition. It held that there was no due process violation when the immigration judge did not recuse himself as the Immigration and Customs Enforcement office has procedures in place to keep the judge’s wife from working on cases before the judge and there is no evidence judge’s wife in fact worked on this case. It held that Lucio-Rayos’ municipal theft conviction was not categorically a crime of moral turpitude rendering him ineligible for withholding as one provision of the municipal ordinance he violated does not textually require intent to permanently deprive the owner as an element and the analogous Colorado state statute does not require such intent either. It held the board erred in deciding the ordinance here was indivisible as the ordinance lists four different ways to commit theft and the analogous state statute treats the same four ways as separate offenses. The panel affirmed the decision, however, as Lucio-Rayos failed to introduce any documentation demonstrating that he was convicted of violating the provision not requiring intent to permanently deprive and thus he failed to carry his burden of proof and the petty theft exception does not apply in this context.

United States v Springer

Springer appealed the denial of his motion for collateral relief. The panel dismissed the appeal. It held that the motion was in effect a habeas petition as it attacked his conviction on the basis of prosecutorial fraud and circuit precedent holds those challenges are habeas relief petitions. It held the united states Supreme Court McQuiggin decision did not contradict or invalidate circuit precedent because it dealt with actual innocence, dealt with a first habeas petition not a subsequent one like here which are treated differently than first petitions and Congress has set up subject matter jurisdictional prerequisites for subsequent petitions while McQuiggin dealt with a procedural bar to a first petition. It held that a certificate of appealablity must be denied as the district court lacked subject matter jurisdiction to hear the motion as the 10th Circuit did not authorize the motion. The panel thus dismissed the appeal and remanded for the district court to vacate its decision.

United States v Benford

Benford appealed his felon in possession conviction. The panel, 2-1, reversed and remanded for a new trial. The whole panel held that there was no error under circuit precedent allowing evidence that Benford texted his willingness to sell firearms a few months before the seizure of a pistol here and evidence he had his girlfriend go into their apartment to retrieve a pistol a few weeks before the seizure here as that evidence went to Benford’s knowledge of the pistol being in the apartment. It held the evidence was sufficient to convict as the pistol was in a computer bag a few feet from his bed and in a room with Benford’s personal belongings and Benford said he would have to take the charge shortly after being told about the pistol and told his girlfriend to get a different pistol a few weeks before the seizure here. The majority reversed and remanded however as the district court did not include the required element of intent to control the pistol in its constructive possession instruction and the evidence here is not sufficient to persuade the majority that acquittal was not a reasonably likely outcome under proper instructions given the fact girlfriend also lived in the room, her purse was on the bed and the pistol was small and had pink handles. Phillips dissented arguing Benford’s prior felon in possession conviction based on actual possession, the texts about selling guns and directing his girlfriend to retrieve a different pistol form their apartment was sufficient to conclude the jury would have convicted under a proper constructive possession instruction.

United States v Meisel

Meisel appealed his child pornography convictions. The panel affirmed. It held there was no abuse of discretion in granting the government’s motion in liminie to preclude Meisel form accusing three specific people of being alternate perpetrators because Meisel was allowed to introduce any and all evidence of access to the computer and hard drive in question, one person merely had proximity and potential access; there was no evidence another had been near the computer in over a year and thus nothing to connect him to the images and videos found; and while the exclusion as to the third may have been error given that person was in the house for hours each week and admitted using the computer shortly before the search warrant here was excited during a period when items of child pornography were downloaded, any error was harmless as all the evidence about third person came in, the parties actually tried the issue of whether the third person was the perpetrator and evidence that Meisel is guilty was overwhelming given the conclusive forensic evidence that only Meisel could have downloaded and frequently accessed the images and videos. It also held that refusing to give Meisel’s identity instruction was not an abuse of discretion as the instructions as a whole informed the jury of Meisel’s alternate perpetrator theory.

Pauly v White et al.

White and two other officers appealed the denial of their qualified immunity based summary judgment motions. The panel affirmed, but the United State Supreme Court reversed and remanded.  On remand, the panel, with one judge concurring, reversed as to all three officers. It first held the original decision was based on incorrect facts and the record would support a finding that White acted in conjunction with the other officers to recklessly create a situation where deadly force was required. It held that White was entitled to qualified immunity because the suspected crime was at most a minor one, white did not identify himself or order Pauly to drop his weapon; Pauly did point a handgun towards White; White was fifty feet away and behind a wall; Pauly and his brother used arms to protect their home form home invaders; it is unclear whether White reasonably feared for the other officers safety; there was no basis to arrest Pauly or his brother; but, no circuit precedent holds white’s behavior violates the 4th Amendment. Likewise, the other officers are entitled to qualified immunity as the law was not clearly established as of the night Pauly was shot. Moritz concurred arguing the majority appears to have undertaken an independent review of the record, incorrectly decided if genuine fact issues exist and erred in finding a constitutional violation where the lack of clearly established law provides a basis to reverse here.