United States v Supreme Court of New Mexico

The United States sued Court arguing New Mexico Rule of Professional Conduct 16-308(E) which limits the subpoenaing of attorneys by prosecutors to testify about past or current clients absent a showing the evidence is essential and here is no feasible alternative is prompted by the supremacy clause as to federal prosecutors. The district court granted summary judgment to the United States as to grand jury subpoenas and for Court as to all other subpoenas. The panel, with one judge concurring in part and dissenting in part, affirmed. The panel first held there was standing to bring the suit as 308(E) requires more of federal prosecutors than federal law does and this burden has been held to be sufficient in an earlier 10th Circuit case on a materially identical rule and the united states presented evidence the rule interfered with presentation of evidence to grand juries and federal prosecutors faced discipline for issuing subpoenas banned by 308(E) and neither Court nor any agency charged with attorney discipline has disavowed the possibility of pursuing discipline. The claim was held to be ripe as it is a legal issue and no factual development is needed to resolve it. It also held there was no error in denying court discovery at the summary judgment stage as the claim here is a legal one that can be resolved under federal law without the need for factual development. The panel erected Court’s judicial estoppel argument holding that the claim here has characteristics of both facial and as applied challenges, the united states did not make clearly inconsistent statements about its claim consistently arguing the same legal points and limits as to who they desired to obtain relief for and any inconsistencies are legal arguments not facts and estoppel does not apply to legal arguments. The panel held the facile challenge framework applied because the relief sought goes beyond the circumstances of any given federal prosecutor in any given circumstances, but, the facial challenge framework only applies to the limited universe of federal prosecutors in New Mexico. The panel held that the “no set of circumstances” standard applied. It held 308(E) was not preempted as to trial subpoenas as an earlier challenge to an identically worded rule had been rejected by a 10th Circuit panel. However, the majority held that 308(E) is preempted as to grand jury subpoenas because, while it is an ethics rule  which is applicable to federal prosecutors by 28 USC 530B, it conflicts with federal grand jury practice by adding requirements to grand jury subpoenas beyond those in Supreme Court precedent and thus  intrudes in to the space assigned to grand juries by the Constitution and grand jury power to obtain information from any source  and its broad power to subpoena based on reasonable possibilities to discover relevant information by adding additional  requirements to and thus impedes the accomplishment of federal criminal investigations using a grand jury. The majority finally rejected Court’s challenge to the injunction as it only enjoined enforcement of preempted provisions and allowed discipline when privileged information is sought. The dissent argued that Congress through 530B authorized regulation of federal prosecutors through ethical rules, an identically worded rule to 308(E) was held by the 10th Circuit to be an ethical rule and thus it applies even in the grand jury context.

United States v Martinez

Martinez appealed his enhanced felon in possession sentence. The panela affirmed. It held the district court did not clearly error in finding Martinez participated in the burglary when the shotgun in question was stolen based on hearsay accomplice statements as the accomplice accurately told police Martinez would have a stolen gun form the house, Martinez gave a questionable account of how the shotgun came into his possession and admitted burying the shotgun and Martinez had several theft convictions all of which provided sufficient indicia of reliability to permit the district court to apply the enhancement for using the shotgun in another felony.