2015 Fall Candidacy Opens October 2.

The Criminal Law Review Fall 2015 candidacy period will take place October 2-19, 2015. Materials will be available on TWEN beginning October 2.
There are 4 components to the candidacy packet:

1. Source/cite check
2. Case Comment
3. Resume/Cover Letter
4. 30-minute Interview

Please insure that components 1-3 are completed by October 19 at 11:59pm. Late submissions will not be considered for the staff editor positions absent extenuating circumstances. Interviews will be scheduled following the October 19.

Please contact Samit Bhalala with questions at sbhalala16@law.du.edu.

We look forward to welcoming a group of new staff editors to the CLR!!

Whitfiled v. United States (SCOTUS)

Before we take a short break for the finals season, CLR’s exceptional staff editor, Courtney Mohan has prepared this blog entry discussing a recently decided U.S. Supreme Court case.


Shortly after botching a bank robbery, Larry Whitfield fled police. While on the run, he was able to find an unlocked home nearby and enter the home. That home belonged to 79-year-old Mary Parnell. Mr. Whitfield encountered Ms. Parnell while in the home and forced her to follow him from the hallway to another room within the house. Once inside the room, Ms. Parnell suffered a heart attack and passed away. Whitfield then fled the house and was later apprehended by police. Whitfield v. United States, 135 S. Ct. 785, 787 (2015).

After a grand jury hearing, Mr. Whitfield was indicted for many charges including violating 18 U.S.C. §2113(e) which states “[w]hoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense… forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.” Id. at 787. A jury later found Mr. Whitfield guilty of the offense. Id. at 788.

Mr. Whitfield appealed his conviction, stating that he did not violate §2113(e) because his movement with Ms. Parnell was not “substantial.” The Court of Appeals disagreed with Mr. Whitfield’s argument and stated that the short distance from the hall to the room during the very brief period of time was enough to satisfy a conviction. Id.

Mr. Whitfield then appealed to the Supreme Court of the United States. Id.


In 1934, Congress enacted §2113(e) as a response to the “bank robberies committed by John Dillinger and others.” Carter v. United States, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting). The phrase “forces any person to accompany him without the consent of such person” from the statute has remained unchanged since 1934. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 783 (2000).

The Court looked to the meaning of the word “accompany” in 1934 when interpreting the statute. Whitfield, 135 S. Ct. at 788. The Court determined that the word simply means “to go along with” someone and does not require the “substantial” movement that Mr. Whitfield argued for. Id. The Court stated that there must be some sort of movement “from one place to another” to satisfy the statute. Id. Thus, the movement from the hall to the nearby room was sufficient. Id.

Mr. Whitfield also attempted to argue that because the statute carried harsh penalties, the movement must be “substantial.” Id. at 789. The Court rejected this argument and stated that the distance of the movement does not make the accompaniment more or less dangerous. The Court offered examples to prove this point including having a victim go to a window and be subjected to police fire. Id. Because Congress did not allow for a distance limitation in the statute, the Court refused to adopt one. Id.

Mr. Whitfield then attempted to convince the Court to adopt a narrow reading of the statute to require a forced accompaniment over a substantial distance because anyone involved in the bank robbery who moved could cause Mr. Whitfield to be convicted under §2113(e). Id. at 789. The Court disagreed and stated that the word “accompany” requires that the victim go somewhere with the robber and does not include victims who move without force. Id.


The Court concluded that Mr. Whitfield violated §2113(e) because he forced Ms. Parnell to accompany him from the hall to a room. Therefore, his conviction was affirmed.

Do we think section 2113 was intended to punish defendants in Mr. Whitfield’s position with life imprisonment or death?  Is it appropriate to treat this “forced accompaniment” that results in death similarly to felony-murder that exists in many jurisdictions?

Please let us know your thoughts, we love hearing from our audience.

State v. Christeson

Before everyone enjoys Spring Break, we have another great post for you to read.  This one comes from Tyler McAnelly and discusses another avenue where a defendant is entitled to assistance of counsel.


In 1999, a jury convicted Mark Christeson of three counts of capital murder. It returned verdicts of death on all three counts and the Missouri Supreme Court affirmed Christeson’s conviction and sentence in 2001, see State v. Christeson, 50 S.W.3d 251 (en banc).

Under the strict 1–year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before this critical deadline, the District Court appointed attorneys Phil Horwitz and Eric Butts to represent Christeson in his federal habeas proceedings. See 18 U.S.C. § 3599(a)(2) (providing for appointment of counsel for state death row inmates). Christeson v. Roper, 135 S. Ct. 891, 892 (2015). After having only met with Christeson for the first time after the deadline passed, Horwitz and Butts filed Christeson’s federal habeus petition on August 5, 2005, 117 days late. Id. Horwitz and Butts asserted that they had miscalculated the AEDPA limitations period. Id. The District Court dismissed the petition as untimely, and the Court of Appeals denied Christeson’s application for a certificate of appealability. Id.

Nearly seven years later, Horwitz and Butts contacted attorneys Jennifer Merrigan and Joseph Perkovich to discuss how to proceed in Christeson’s case. Merrigan and Perkovich immediately noticed a glaring problem – Christeson’s only hope for securing review of the merits of his habeas claims was to file a motion under Fed. R. Civ. P. 60(b) seeking to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. However, Horwitz and Butts could not be expected to file such a motion on Christeson’s behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition. While initially receptive to Merrigan and Perkovich’s assistance, Horwitz and Butts soon refused to allow outside counsel access to their files. Id. at 893.

Merrigan and Perkovich, working independent of the original defense counsel, filed another motion for substitution of counsel. The District Court denied the motion. Christeson appealed to the Eighth Circuit. On September 19, 2014, while this appeal was still pending before the Eighth Circuit, the Missouri Supreme Court issued a warrant of execution setting October 29, 2014, as Christeson’s execution date. Id.

Merrigan and Perkovich again filed a motion for substitution of counsel on Christeson’s behalf. The District Court again denied the motion, explaining that substitution of “federally-appointed counsel is warranted only when it would serve the interests of justice,” it offered four reasons for its decision. Id. First, it deemed the motion to be untimely because it “was not filed until 2014, and shortly before [Christeson’s] execution date.” Second, it observed that Horwitz and Butts had not “abandoned” Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri’s lethal injection protocol. Third, it noted that although Horwitz and Butts had represented Christeson before the Eighth Circuit, that court had not appointed substitute counsel. Fourth and finally, the District Court expressed its belief that granting the motion would set “an untenable precedent” by allowing outside attorneys to seek “’abusive’” delays in capital cases. Christeson again appealed and the Eighth Circuit summarily affirmed the District Court’s order. The US Supreme Court reversed the Eighth Circuit’s judgment on the District Court’s order, remanding to the lower courts. Id.


18 U.S.C. § 3599 “entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings.” Congress has not conferred capital habeas petitioners with the right to counsel of their choice. The statute leaves it to the court to select a properly qualified attorney and contemplates that a court may “replace” appointed counsel with “similarly qualified counsel … upon motion” of the petitioner. § 3599(a)-(e). Id. at 894.

The Court found that a motion for substitution should be granted when it is in the “interests of justice.” See Martel v. Clair, 132 S.Ct. 1276, 1286 (2012). The Court further explained that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion “include: 1) the timeliness of the motion; 2) the adequacy of the district court’s inquiry into the defendant’s complaint; and, 3) the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s responsibility, if any, for that conflict).” Id. The District court’s principal error was its failure to acknowledge Horwitz and Butts’ conflict of interest. Christeson, 135 S.Ct. at 894. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for “serious instances of attorney misconduct.” Holland v. Florida, 560 U.S. 631, 651–652 (2010).

The Court determined that advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Because such argument would threaten their professional reputation and livelihood, counsel cannot reasonably be expected to make such an argument. Christeson, 135 S.Ct. at 894. Indeed, the Court went so far as to say that given a capital defendant’s “statutory right to counsel,” even “in the absence” of § 3599(e) a district court would be compelled “to appoint new counsel if the first lawyer developed a conflict. Id. at 895.

The Court then disposed of the second and third factors relied on by the District Court, that appointed counsel continued to represent Christeson in litigation challenging the means of his execution, and that the Eighth Circuit had not previously substituted counsel. “Whether Horwitz and Butts had currently ‘abandoned’ Christeson is beside the point: Even if they were actively representing him in some matters, their conflict prevented them from representing him in this particular matter. Likewise, it is irrelevant that the Eighth Circuit had not previously sua sponte directed substitution of counsel in the course of denying Christeson’s request for a certificate of appealability and adjudicating his challenge to Missouri’s execution protocol, when the conflict was not evident.” Id.

The Court found that the District Court’s sole reliance on the first and fourth factors was improper because “[t]hese factors alone cannot warrant denial of substitution. Christeson’s first substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately a month after outside counsel became aware of Christeson’s plight and well before the State had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b) motion.” Id.


The Court concluded Christeson should have that opportunity and is entitled to the assistance of substitute counsel while addressing the equitable tolling of the AEDPA’s statute of limitations, and in turn, the Fed. R. Civ. P. Rule 60(b) relief. Christeson, 135 S.Ct. at 896.

US v. Wheeler

The CLR is happy to present the great work of yet another one of our talented staff editors.  This blog entry regarding a recent case decided by the 10th Circuit was brought to you by Samit Bhalala.

United States v. Wheeler, No. 14-1031, 2015 WL 191149 (10th Cir. Jan. 15, 2015).


On March 12, 2012, Kenneth Wheeler, while abroad in Italy, posted several status updates to his Facebook page advising his “religious followers” to “kill cops, drown them in the blood of thier [sic] children, hunt them down and kill their entire bloodlines” and provided names, and made a serious of other vengeful and threatening remarks.  United States v. Wheeler, No. 14-1031, 2015 WL 191149, at *1 (10th Cir. Jan. 15, 2015).

Mr. Wheeler is described as a man with strong anti-government views and has become irate at specific police officers in Grand Junction, Colorado, because of, among other things, a DUI arrest that he believed was a set up.  Id.

Even though, as evidenced by Facebook’s records, there was no implication that Mr. Wheeler was a member of any “network” at the time he made his postings, two officers testified that they had viewed Mr. Wheeler’s Facebook page on March 16, 2012, and thought he had Facebook friends listed on it.  Id.   Subsequently, the US District Court for the District of Colorado convicted Mr. Wheeler of two counts of transmitting a threat in foreign commerce under 18 U.S.C § 875(c) based on his March 12 and March 16 Facebook status updates that called upon his “religious followers” to carry out violent acts.  Id. at *1-3.  Mr. Wheeler was sentenced, among other penalties, to forty months imprisonment for each count, running concurrently.  Id.


Under 18 U.S.C. § 875(c), “whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injury the person of another, shall be fined under this title or imprisoned not more than five years, or both.”  Id. at *2 (quoting 18 U.S.C. § 875(c) (2014)).

Pursuant to 28 U.S.C. § 1291 jurisdiction, the Tenth Circuit Court of Appeals heard Mr. Wheeler’s appeal and released a decision on January, 15, 2015.  Id. at *1.  Mr. Wheeler contends that his convictions must be reversed because: (1) the jury was not properly instructed that it had to find Mr. Wheeler had a subjective intent to threaten in order to convict; and (2) the evidence was insufficient to support a finding that Mr. Wheeler transmitted a “true threat.”  Id.  The court, in an opinion by Circuit Judge Kelly, reversed for a new trial, holding that: (1) “the jury was not properly instructed,” and (2) the court is “not persuaded that the evidence was insufficient to convict.”  Id.

(A) Erroneous Jury Instruction

At trial, Mr. Wheeler proposed two jury instructions on the elements of the offense, both requiring the jury to find that “Mr. Wheeler understood and meant the words as a true threat.”  Id. at *2.  The government opposed these proposed instructions, arguing that it incorrectly makes § 875(c) “a specific intent crime rather than the general intent crime that it is.”  Id. The district court agreed, rejecting Mr. Wheeler’s proposed instructions, and thereby instructed the jury as to the requisite state of mind element of a “threat,” stating: “Whether the defendant intended or had the ability to carry out the threat is not relevant. The inquiry is how a reasonable person would have perceived the threat.”  Id. at *2-3 (emphasis added).

In United States v. Heineman, the Tenth Circuit recently held that § 875(c), in accordance with the First Amendment, requires evidence of a defendant’s subjective intent to threaten.  Id. (Citing United States v. Heineman, 767 F.3d 970 (10th Cir. 2014)).  The government, although arguing that Heineman was incorrectly decided, does concede that under current Tenth Circuit law the trial court’s jury instructions were erroneous.  Id. at *3.  Still, however, the government contends that the conviction should be affirmed because the erroneous instructions were harmless.  Id.

“Where an element is improperly omitted from a jury instruction, “a court” must reverse unless ‘it [is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’”  Id. (citing Neder v. United States, 527 U.S. 1, 18 (1990)); see also United States v. Sierra-Ledesma, 645 F.3d 1213, 1217 (10th Cir. 2011).  Here, the court found that a rational juror could conclude, based on the evidence presented, that Mr. Wheeler did not subjectively intend for his remarks to be threatening.  Id. at *3-4.

First, Mr. Wheeler states that he believed he had no Facebook friends at the time of both status updates; therefore it would not seem far-fetched for a rational juror to believe that Mr. Wheeler honestly thought nobody would see his posts.  Id.  Second, Mr. Wheeler states that he had no religious followers, whereby a rational juror can use that fact in evaluating whether Mr. Wheeler had the requisite intent to threaten.  Id.

In response, the government suggests several uncontested facts, which convincingly confirms Mr. Wheeler’s intent to instill fear in the individuals he mentioned in his Facebook posts, including 1) Mr. Wheeler’s understanding of the illegality of his actions and 2) Mr. Wheeler intended his posts to be threatening.  Id.  The court found the second argument to be lacking, because Mr. Wheeler’s intention to break the law does not establish that he intended for the mentioned parties to feel threatened.  Id.

Because Mr. Wheeler’s intent was not “supported by uncontroverted evidence,” the court held that a jury, upon retrial, must determine the issue of intent, thereby making this erroneous jury instruction not harmless.  Id. at *3-4 (citing Neder, 527 U.S. at 18).

(B) Evidence was Sufficient to Support Mr. Wheeler’s Conviction

On appeal, Mr. Wheeler argues that the evidence presented at trial was insufficient to support his conviction because his Facebook status updates did not express his own intent to do violence.  Id.

  • Standard of Review Exception

Generally, the Tenth Circuit reviews claims of evidentiary sufficiency under a deferential standard, thereby “view[ing] all the evidence, direct or circumstantial, together with all reasonable inferences therefrom, in the light most favorable to the prosecution.”  United States v. Leaverton, 835 F.2d 254, 255 (10th Cir. 1987).   Under this deferential standard, the reviewing court must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 319 (1979).

However, the United States Supreme Court has set forth an exception to this deferential rule, applicable when a defendant argues the First Amendment protects his speech.  2015 WL 191149, at *4.  In Bose Corp. v. Consumers Union of United States, Inc., the Supreme Court held that in cases involving “constitutional facts,” the reviewing court must undertake an “independent review” of the record to determine if the speech qualifies as unprotected speech and whether the fact-finder correctly applied First Amendment law.  446 U.S. 485, 500-08 (1984).

(2) Exhortation as a “True Threat”

In Watts v. United States, the Supreme Court previously held that § 875(c), like all threat statutes, “must be interpreted with the commands of the First Amendment clearly in mind.”  394 U.S. 705, 707 (1969).  Consequently, § 875(c) applies only to “true threats”, which are threats outside the protective scope of the First Amendment.  2015 WL 191149, at *5 (quoting Viefahus, 168 F.3d at 397).  In distinguishing “true threats” from First Amendment protected speech, it is not essential to demonstrate that “the defendant intended to or had the ability to actually carry out the threat.”  Id. (quoting Viefahus, 168 F.3d at 395-96).  Instead, a court must undergo “a fact-intensive inquiry, in which the language, the context in which the statements are made, as well as the recipients’ responses are all relevant.”  Id. (quoting Nielander v. Bd. Of Cnty. Comm’rs, 582 F.3d at 1155, 1167-68 (10th Cir. 2009)).

Mr. Wheeler argues that his Facebook posts were directed to non-existent “religious followers” and therefore cannot amount to true threats.  Id. at *6.  The court rejected this argument, maintaining that: “if a reasonable person might believe the individuals ordered to take violent action are subject to the will of the threatening party, such exhortations may amount to true threats.”  Id. (emphasis added).

(a) “Incite” Versus “Threat”

Mr. Wheeler argued that by defining true threats to include exhortations, like the one in this case, would “abolish the constitutional distinction between threats and incitement to violence,” thereby, would allow “incitement to be charged under the more lenient threat standard.”  Id. at *7.

In “cyberspace,” the line between incitement and threat is not always clear.  Id. (contrasting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)).  The court found, that although Mr. Wheeler’s speech may appear to be closer to incitement,” the speech “fits squarely within the rationale for excluding true threats from First Amendment Protection.”  Id.  The court reasoned that if it did not view Mr. Wheeler’s status updates as a “true threat,” it would leave the state “powerless against the ingenuity of threateners.”  Id. (citing United States v. Turner, 720 F.3d 411, 422 (2d Cir. 2013)).

(b) Reasonable Person Standard

In determining whether Mr. Wheeler’s exhortations amount to “true threats,” the court addressed whether a reasonable person would interpret Mr. Wheeler’s Facebook posts to be serious threats, “in light of the full context in which the posts were made, including the reaction of the recipients.”  Id. (emphasis added).

In light of the circumstances surrounding the Facebook posts, the court found that a rational juror could consider them to be true threats.  Id. at *8.  Recently, in the wake of recent massacres at educational and other institutions by active shooters, a Facebook post, which commands “religious followers” to take deadly action against a number of specific individuals and their children, could be viewed by a reasonable person as “serious directives to kill.”  Id.

Although Mr. Wheeler places dispositive weight on the fact that these “religious followers” do not exist, he did concede “had he directed anyone under his control to do violence, his posts would have amounted to true threats.”  Id.  Therefore, a reasonable person could conclude that a command to followers to commit acts of violence.  Id.

Furthermore, the evidence presented at trial suggests that the parties referenced in Mr. Wheeler’s posts were frightened, some frightened enough to inform the police.  Id. at *9

The court held, that in light of the context and circumstances surrounding the event, a fact-finder could find Mr. Wheeler’s posts and the reactions therefrom, as “eminently reasonable.”  Id.


This court, on appeal, was unable to say that no rational fact-finder could find Mr. Wheeler’s statements to be true threats; therefore the district court’s jury instruction was erroneous.  Id. at *4.  Additionally, this court found the evidence presented at trial was sufficient, thereby permitting a re-trial.  Id. at *9.

Should a general threat made on social media amount to a criminal offense?  Does this have any implications on the 1st Amendment right to free speech and expression?

United States v Yeley-Davis (holiday Edition)

Season’s greetings from the DU Criminal Law Review.  This is the last blog submission of the year, but definitely not the least.  This one comes to you from another capable staff editor, David Koelling.  We will have more engaging blog posts next year.  Happy  holidays and thanks for visiting our blog!


United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011).

Cynthia Yeley-Davis was charged on July 23, 2009 with conspiracy to possess with intent to distribute and conspiracy to distribute over 500 grams of a mixture of a substance containing a detectable amount of methamphetamine. United States v. Yeley-Davis, 632 F.3d 673, 676 (10th Cir. 2011). The indictment also named Roman Cortez-Nieto and Adan Torres-Leos as co-conspirators. Id. at 676-77.

Throughout the testimony of a state law enforcement agent, the government introduced certified cell phone records, as well as charts summarizing the data, from Yeley-Davis, Cortez-Nieto, and Torres-Leon, which showed calls made and received between all three parties, referred to as Exhibit 5 in the trial. Id. at 677.   The agent testified where he obtained the records and how cell phone towers operate. Id. The government also introduced a notebook and pictures of a cell phone screen that linked Yeley-Davis to the conspiracy and used various photo arrays of the alleged co-conspirators to assist the jury with associating faces with names. Id.

A jury convicted Yeley-Davis on September 11, 2009. The government sought a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on Yeley-Davis’s two prior state felony drug convictions. Id. She was subsequently sentenced by the district court to life imprisonment release and incurred a $1,000 fine and a $100 special assessment.

On appeal, Yeley-Davis argued that the district court erred in admitting Exhibit 5, thereby depriving her of her Sixth Amendment right to confrontation. Id. She also argued that the court erred in imposing a life sentence because one of her previous convictions did not constitute a felony drug offense and because a life sentence violates her Eighth Amendment rights. Id. Finally, she argued that the admission of the notebook and pictures of the cell phone screen, the agent’s expert testimony of how cell phone towers operate, and the photo arrays amount to cumulative error warranting reversal. Id.


The first argument Yeley-Davis made was that the admission of Exhibit 5 denied her right to confrontation under the Sixth Amendment. Id.

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. Amend. VI. The Supreme Court has held that the Confrontation Clause only “guarantees a defendant’s right to confront those ‘bear testimony’ against him.” Crawford v. Washington, 541 U.S. 36 (2004).

Under Federal Rule of Evidence 803(6), cell phone records qualify as an exception to the hearsay rule and are admissible as business records. They must be “kept in the course of regularly conducted business activity . . . if it was the regular practice of that business activity to make the . . . record.” Fed. R. Evid. 803(6).

The Supreme Court has held that a business record is testimonial if the record was created for the purpose of establishing or proving some fact at trial, but is not testimonial if it was created for the administration of an entity’s affairs. See Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2531 (2009).

Similarly, the Supreme Court has held that “written certification . . . is nontestimonial [because it is] too far removed from the ‘principal evil at which the Confrontation Clause was directed’ to be considered testimonial.” Crawford, 541 U.S. at 50.

Yeley-Davis argued that the phone records and the authenticating documents were testimonial because they were prepared as exhibits for trial. Yeley-Davis at 679. The Court of Appeals for the Tenth Circuit found that the cell phone records and authenticating documents in Exhibit 5 were in fact created for the administration of the cell phone company’s affairs, not to establish or prove some fact at trial and were therefore not testimonial. Id. By extension, the records were admissible under the business records exception of the hearsay rule. Id. Therefore, the Court found Yeley-Davis’s constitutional right to confront testimony was not violated when the district court admitted the non-testimonial business records in Exhibit 5.

Second, Yeley-Davis argued that one of her prior convictions did not qualify as a prior felony drug offense, making her ineligible for a life sentence under 21 U.S.C. § 851.

The federal statute requires the government to show that the defendant was convicted of two or more felony drug offenses before the court can invoke a mandatory life sentence. 21 U.S.C. § 841(b)(1)(A). A “felony drug offense” is defined as “an offense that is punishable by imprisonment for more than one year under any law of . . . a State . . . that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).

The record showed that Yeley-Davis was convicted of two Wyoming state drug-related felonies. Id. at 681. One conviction was for delivery of a controlled substance (Wyo. Stat. § 35-7-1031) and the other conviction was for taking or passing a controlled substance into a jail (Wyo. Stat. § 6-5-208). Id. Yeley-Davis conceded that the former conviction was a felony but contested the classification of the latter conviction as a felony, even though the district court classified both as felonies. Id.

The Court reaffirmed the classification of the second offense as a felony under 21 U.S.C. § 802(44) because the Wyoming statute she was charged with was punishable by more than one year imprisonment and it prohibited conduct related to drugs. Id. at 682. Yeley-Davis’s argument that the language of the statute applied to crimes other than drug offenses was not persuasive to the Court of Appeals. Id.

Similarly, Yeley-Davis argued that the imposition of a life sentence was a violation of the Eight Amendment’s prohibition against cruel and unusual punishment.

Prior precedent has held that “[t]he Eighth Amendment contains a narrow proportionality principle that applies to non-capital sentences.” United States v. Williams, 576 F.3d. 1149, 1165 (10th Cir. 2009) (citing United States v. Angelos, 433 F.3d. 738, 750 (10th Cir. 2006)). The Tenth Circuit added that “[u]nder that principle, the Eight Amendment forbids only extreme sentences that are grossly disproportionate to the crime.” Id. Previously, the Tenth Circuit found held that a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A) did not violate the Eighth Amendment. Yeley-Davis at 682 (citing Hamelin v. Michigan, 501 U.S. 957 (1991)).

Finally, Yeley-Davis argued that several harmless errors accumulated into one harmful error in the trial. Id. at 603. More specifically, she argued that the combination of allowing the introduction of a notebook and pictures of a cell phone to tie her to the conspiracy, allowing the agent to testify about how cell phone towers operate, and allowing the photo arrays into evidence should warrant a new trial.

The Court disagreed and noted that the jury was allowed to decide whether the evidence was properly seized from Yeley-Davis’s co-conspirators and whether the chain of custody was broken. It follows that the trial court did not abuse its discretion in admitting these exhibits and there was no error. Id.

Yeley-Davis also argued that the trial court erred in admitting the agent’s testimony about how cell phone towers operate, because the testimony was expert testimony under Federal Rule of Evidence 702 and that proper foundation had not been laid.

The Tenth Circuit has held that “[w]hen the subject matter of proffered testimony constitutes ‘scientific, technical, or other specialized knowledge,’ the witness must be qualified as an expert.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004) (citing Fed. R. Evid. 702). The court “must first determine whether an expert is qualified by knowledge, skill, experience, training, or education to render an opinion. Second, if the court determines that a witness is qualified, it must then determine whether her opinions are reliable.” Milne v. USA Cycling, Inc., 575 F.3d 1120, 1133 (10th Cir. 2009).

The court found that police are allowed to testify as experts in the area of drug trafficking. Yelley-Davis at 684. It further found that the district court failed to make findings on the record whether to admit the expert testimony of the agent. Id. However, the court refused to reverse the conviction on the finding of harmless error. Id. at 685. It held that the admittance of testimony about how cell phone towers work did not have a substantial impact on the outcome of the case. Id.

Yeley-Davis also argued that the admittance of the photo array of her fellow co-conspirators was hearsay and that the exhibits invaded the province of the jury.

In a prior case, the court held that an even more prejudicial photo array was harmless error because the trial judge gave a limiting instruction on the array and the array was only displayed a limited amount of time. United States v. Allen, 603 F.3d 1202, 1210 (10th Cir. 2010). In this case, the court held that the photo array used was even less prejudicial and it allowed the government to illustrate its theory of conspiracy. Yeley-Davis at 686. The district court also used a limiting instruction similar to Allen. Id.

The court ultimately agreed with only one of the errors Yeley-Davis brought on appeal, but that error did not support Yeley-Davis’ error argument. Id.


In conclusion, the Tenth Circuit affirmed the life sentence of Yeley-Davis for her violation of 21 U.S.C. § 841(b). Id. at 676. Yeley-Davis failed to show that her constitutional right to confrontation was violated. She also failed to show that one of her convictions was not a felony and that a life sentence under 21 U.S.C. § 841(b)(1)(A) was cruel and unusual punishment. Finally, Yeley-Davis failed to show that there was a culmination of harmless errors requiring the dismissal of her conviction.

It appears that the Tenth Circuit Court of Appeals construes the meaning of “testimony” in the Confrontation Clause and the Sixth Amendment in general literally. The court also appears to construe state drug statutes literally and will defer to the state’s determination of whether an offense constitutes a felony or not. The court also seems to take a narrow reading of the Eighth Amendment’s prohibition on cruel and unusual punishment, especially when it comes to non-capital punishments, as in this case. It also appears that the court is unlikely to find harmless error in the admittance of evidence unless the evidence offered is expert testimony. Even the admittance of expert testimony was found to be harmless when the district court failed to fulfill its gatekeeper duties.


Hall v. Florida

Thanks for joining us on this special, Veteran’s Day edition of the Criminal Law Review blog!  One of our talented staff editors, Jennifer Hudson, wrote this piece regarding the Supreme Court’s take on the standards for punishment of mentally disabled individuals.

Hall v. Florida

Hall was sentenced to death by a Florida jury after he and an accomplice kidnapped, raped, beat, and murdered a pregnant 21-year-old newlywed and killed a sheriff’s deputy attempting to arrest them outside a convenience store they were planning to rob.  Florida did not consider intellectual disability a statutorily mitigating factor at the time.  In 1987, the Supreme Court ruled in Hitchcock that capital defendants must be allowed to present non-statutory mitigating evidence.  Hall was resentenced and again received the death penalty after presenting substantial evidence of his intellectual disability in the form of lay and expert testimony.  Although the sentencing court found substantial evidence to support the finding that Hall had been mentally retarded his entire life, it stated mental retardation cannot be used to excuse moral culpability, and the Florida Supreme Court affirmed Hall’s sentence.

In 2002, the Supreme Court in Atkins held execution of mentally retarded persons constitutes cruel and unusual punishment under the Eighth Amendment. Hall filed a motion in 2004 that he cannot be executed by Florida based on his intellectual disability.  More than five years later, Florida held a hearing where Hall presented evidence of his disability, including an IQ score of 71 (he had received nine IQ evaluations, with two IQ scores below 70, but the court excluded the scores for evidentiary reasons).  However, Florida law requires an IQ test score of 70 or below before a defendant can present any additional evidence of intellectual disability, thus Hall was found not to meet the threshold requirement.  The Florida Supreme Court held the 70-point threshold was constitutional and denied Hall’s appeal. Hall applied for a writ of certiorari from the U.S. Supreme Court to challenge the Florida statute.

The issue being decided by the Supreme Court is whether a Florida statute violates the Eighth Amendment’s prohibition against cruel and unusual punishment when it precludes presentation of evidence regarding a capital defendant’s intellectual disability if the defendant’s IQ score is above 70.

The nation’s highest court found that the Florida statute denying a capital defendant’s presentation of evidence regarding an intellectual disability based on an IQ score of 70 or more is unconstitutional because it creates an unacceptable risk that people with intellectual disabilities will be executed in violation of the Eighth Amendment. (5-4 decision; Justice Alito dissenting, joined by Chief Justice Roberts, and Justices Scalia and Thomas).

Because Atkins did not specify how states should determine whether a capital defendant has an intellectual disability, the Supreme Court began by looking at how intellectual disability is defined by the medical community and if the Florida statute is consistent with that definition.  While the Court found the statute on its face is consistent with the definition of intellectual disability used by medical professionals, it found that it has been applied too narrowly by the Florida Supreme Court.  By holding a capital defendant with an IQ score of 70 or more is barred from presenting additional evidence of an intellectual disability, the Court found Florida law disregards established medical practices by failing to allow the consideration of other evidence of a disability (evidence of past performance, environment, and upbringing) and failing to recognize that an IQ score should be read as range, rather than a fixed number.

The Supreme Court then examined how other states determine whether a defendant has an intellectual disability to see whether the Florida statute comports with society’s views of humane treatment.  It found that 41 states have rejected a strict 70-point cutoff, recognizing the inherent margin of error in IQ testing, with only two other states mandating a strict 70-point cutoff (Virginia and Kentucky) as a threshold issue.  The Court found every other state (other than Virginia) whose law has been interpreted by its courts has sided contrary to Florida.

The Court then looked Atkins, which, although it left the issue of how the determine an intellectual disability to the states, mentioned the error inherent in IQ testing.  The Court found that states’ ability to determine what constitutes an intellectual disability does not give them “unfettered discretion” to define the scope of the protection afforded by the Eighth Amendment because they are bound to adhere to the clinical definitions of intellectual disability.

Finally, the Supreme Court ruled the Florida statute was unconstitutional, as interpreted by the Florida courts, because of the unacceptable risk that intellectually disabled defendants would be executed by denying any defendant with an IQ score above 70 the ability to present additional evidence of an intellectual disability.  The Court mentioned that not one medical professional supported the 70-point cutoff.  Of particular interest was the fact that IQ scores are approximations that are not intended to be final, infallible assessments of intellectual ability.  The Court found a state that refuses to acknowledge the inherent uncertainty in IQ tests runs the risk of executing a person with an intellectual disability.  The Court ruled states must allow defendants whose IQ score falls within the tests margin of error to present additional evidence of intellectual disability.  It held the Florida statute violates the Eighth Amendment prohibition against cruel and unusual punishment, reversed the Florida Supreme Court, and remanded the case.

How did the courts come up with the 70 IQ cutoff in the first place? Could a black-letter rule be made to prevent intellectually challenged individuals from falling through the “cracks” of our legal system?  Please tell us what you think by commenting below.

US v. $85,688.00

The below submission comes from one of our dedicated staff editors, Jackson Gardner.  Enjoy!

United States v. $85,688.00 in U.S. Currency

2014 WL 4237377 (10th Cir. Aug. 28, 2014)


On September 15, 2008, Trooper Chamberlin Neff (“Neff”), who was parked in the median on Interstate 80 to monitor traffic, saw Andrew Wiley’s (“Wiley”) 2002 Toyota Tundra truck drive past. United States v. $85,688.00 in U.S. Currency, 2014 WL 4237377, at *8 (10th Cir. Aug. 28, 2014).  As the truck drove by, Neff ran Wiley’s Missouri license plate to check his registration. Id. Neff’s search of the license plate came back as “not on file.” Id. After Neff’s dispatch reached the same result, Neff stopped Wiley’s truck to investigate the registration. Id.

Once Wiley pulled his truck to the side of the interstate, Neff walked to the passenger’s side window without inspecting the truck’s license plate, which was clearly brand new and bore the markings of a properly registered vehicle. Id. at *9.  When Neff arrived at the passenger’s side window, Wiley rolled down the window three or four inches and Neff asked Wiley if he could open the passenger’s side door, and Wiley refused. Id. Neff then asked Wiley for a driver’s license and ultimately asked Wiley to exit the truck and to bring his license and registration over to Neff’s patrol car. Id.

After Wiley accompanied Neff to the patrol car, Neff told Wiley that he’d stopped him because the truck’s registration was not on file. Id. Wiley explained that he had just bought the car and provided Neff with the “original motor vehicle title receipt” for the truck along with his driver’s license and insurance card. Id.

While the two men waited for the police dispatch to run Wiley’s information, Neff proceeded to ask Neff a slew of questions including questions about where Wiley was going and for what reason. Id. Wiley responded that he was driving to California to see family, via a scenic route because he was recently laid off. Id. at *6.  After about seven minutes passed, the police dispatch confirmed that they had no additional information on the  registration records, but informed Neff that Wiley’s record showed an arrest for marijuana possession in 2001. Id. at *9.

In response to the information about Wiley’s prior arrest, Neff asked dispatch to contact Wiley’s family and friends in California while he continued questioning Wiley about the prior marijuana conviction. Id. at *10.  Dispatch eventually contacted Neff and informed him that she was unable to contact Wiley’s family. Id. Neff then walked over to the truck and confirmed that the VIN number on the receipt matched the VIN number on the truck’s dashboard and inside the truck’s doorframe. Id. While checking the doorframe, Neff noticed a can of Febreze in the truck before returning the title receipt to Wiley for the second time. Id.

While Wiley was walking back to his truck, Neff stopped him yet again and asked if he could ask more questions. Id. After Wiley declined the request Neff persisted, stating that he believed that criminal activity was afoot and asked Wiley if he could search the truck and then asked for consent to walk a drug dog around the truck, both of which Wiley refused. Id. Neff proceeded anyways, stating that he had reasonable suspicion. Id. The drug dog search uncovered $85,668 in cash along with a small amount of marijuana. Id.

            Consequently, the government filed a foreiture action against the cash found during Neff’s search. Id. Wiley claimed ownership of the cash and moved to suppress all evidence obtained from the search. Id. Wiley’s motion to suppress was denied by the district court, which found that the “not on file” registration justified the initial stop. Id. Additionally, the court found that Neff had reasonable suspicion of drug activity to deploy the drug dog and that the drug dog’s alert gave rise to probable cause to search the truck. Id. Wiley appealed this decision to the United States Court of Appeals in the Tenth District. Id.




            The issue entertained by the court was whether or not Neff had reasonable suspicion to investigate the validity of Wiley’s registration.  Stopping an automobile and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment. Id. at *11 (citing to Delaware v. Prouse, 440 U.S. 648, 653 (1979)).   Further, “certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, 460 U.S. 491, 498 (1983).  However, “when, as here, an officer merely suspects a traffic violation, he may not continue to detain the driver for these purposes after reasonable suspicion has dissipated.” $85,688 in US Currency, 2014 WL 4237377 at *12.

Here, all three Judges agreed that Neff had reasonable suspicion to stop Wiley’s truck because of the “not on file” response to his registration inquiry.  None of the Judges agreed on when this reasonable suspicion dissipated. Judge Phillips contended that Neff had reasonable suspicion as to the validity of Wiley’s registration dissipated when Neff saw, or should have seen, Wiley’s brand new license plate because Neff should have seen that the license plate bore all the markings of a properly registered vehicle. Id. at *12.  Additionally, Judge Phillips argued that Neff’s reasonable suspicion that the car was stolen dissipated once Wiley presented Neff with his title receipt. Id.

On the contrary, Judge Ebel contends that Neff had reasonable suspicion to detain and question Wiley up until the point when Neff returned Wiley’s driver’s license and title receipt and told him that he could leave. Id. at *1.  Judge Ebel acknowledged the holding in Florida v. Royer, which stated that “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” 460 U.S. at 500.  However, Judge Ebel explained that the Royer court was speaking to the length of a stop, not whether or not the least intrusive means were employed. $85,688 in US Currency, 2014 WL 4237377 at *2.  Thus, Judge Ebel concluded that Neff’s decision to question Wiley was within his discretion, but Judge Ebel also concluded that Neff’s reasonable suspicion dissipated once he verified the VIN numbers, examined the title receipt, and returned all of the documents to Wiley. Id. at *3.

Thus, as the majority held that Neff’s reasonable suspicion as to Wiley’s registration was warranted.  More importantly, they held that Neff’s reasonable suspicion dissipated long before he developed a new suspicion that Wiley was involved in a drug crime.  As a result, the court reversed the district court, holding that Neff’s search of Wiley’s truck was a violation of the Fourth Amendment because Neff’s articulable reasonable suspicion had dissipated before the search occurred.

Chief Judge Briscoe delivered an in-depth dissent arguing that the district court’s denial of the motion to suppress ought to be upheld.  Chief Judge Briscoe contended that not only did Neff have reasonable suspicion to stop Wiley, but Neff also had grounds for a ‘new’ reasonable suspicion that Wiley was involved in a drug crime.  Chief Judge Briscoe grounded his opinion in several facts that he believed to give rise to reasonable suspicion.  First, Chief Judge Briscoe argued that Wiley’s travel plans, namely driving on Interstate 80 to get to California, were a factor in favor of reasonable suspicion.  Second, Chief Judge Briscoe believed that Wiley’s criminal history, and his failure to be forthcoming about his marijuana conviction, weighed in favor of reasonable suspicion.  Lastly, Chief Judge Briscoe contended that the combination between Wiley only opening his passenger-side window a few inches and the can of Frebreze gave rise to reasonable suspicion because drug traffickers commonly use aerosol scents to cover up the smell of contraband.  Through a totality of the circumstances test, Chief Judge Briscoe came to the conclusion that Neff had reasonable suspicion throughout the entire interaction with Wiley.



The majority  were unconvinced by Chief Judge Briscoes’ arguments.  They held that Wiley’s travel plans were not so unusual to give rise to reasonable suspicion.  Likewise, the majority thought that using criminal history as grounds for reasonable suspicion was a dangerous and slippery slope with respect to future cases.  Next, the majority found it to be completely reasonable for Wiley to have a can of air freshener in his car for a long road trip, noting that the lack of any air freshener smell actually cut against the finding of reasonable suspicion.  Finally, the majority argued that Wiley was within his rights to refuse to open his window more than a few inches and to use this as a factor supporting reasonable suspicion of criminal activity would, in itself, be a violation of the Fourth Amendment.  Ultimately, the court held that Wiley’s motion to suppress the evidence found in the search was wrongfully denied by the district court, and thus this case was reversed and remanded.

Do you believe this case was decided correctly? Please share your comments and thoughts below.