September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the Tenth Circuit

A quarterly case summary digest of recent federal circuit court opinions

by Andrew J. Figliuzzi

United States v. Shaw, No. 13-3050 (10th Cir. Jul. 11, 2014) 758 F.3d 1187

Defendant was charged with robbing a bank, two credit unions, attempting other robberies, and committing four related firearms offenses.  During voir dire, Defendant mouthed the words “call me” to a juror as he made a gesture to his cell-phone.  The targeted juror told the bailiff that she felt very uncomfortable because Defendant had her personal information.  In response, the court asked the rest of the jury if they were aware of the gesture and released the targeted juror from the panel.  However, the court kept the rest of the jurors, including ones that were aware of Defendant’s gesture.  Defendant was ultimately convicted and he appealed, arguing that the jury could not be impartial because it had learned of the gesture before trial, and that the district court erred in declining to grant a mistrial.  

Held: The district court did not err in declining to grant a mistrial.  The cause of any prejudice to Defendant was his own misconduct during voir dire.  In addition, the remaining members of the jury confirmed that they could be impartial and not take the gesture into account during deliberation.  

United States v. Hale, No. 13-4099 (10th Cir. Aug. 12, 2014) 2014 WL 3906862

After filing for bankruptcy, Defendant allegedly lied under oath, attempted to conceal an agreement to sell property from the bankruptcy trustee, and sent the trustee a package with unidentified material with a note that read, “Possible Haz-mat? Termites or Hanta virus from mice?”  In the indictment against Defendant, the government alleged that Defendant had made a false statement under oath in his bankruptcy case, in violation of 18 U.S.C. § 152(2).  Defendant was ultimately convicted and appealed, arguing that the answers he gave under oath were in response to vague questioning on the part of his trustees and that precise questioning is imperative as a predicate for the offense of perjury.

Held: Defendant’s conviction under 18 U.S.C. § 152(2) was plainly erroneous because the trustees’ questions for Defendant were not precise and Defendant could not reasonably know if they were referring to the truth, completeness, or accuracy of his bankruptcy document.  

United States v. Tubens, No. 13-4118 (10th Cir. Sep. 2, 2014) 2014 WL 4290598

Defendant was charged with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), after Utah Highway Patrol narcotics dogs detected the smell of drugs in Defendant’s bag on a greyhound bus, and officers found meth in an unclaimed bag on the bus.  When the bus had stopped, narcotics dogs alerted to the smell of meth in the luggage compartment, and the officers identified the owner as Defendant.  Although no drugs were found in the first bag, officers searched for and found meth inside a carry-on bag that Defendant had verbally disowned.  After Defendant was convicted, he appealed, arguing that the district court erred in denying his motion to suppress.

Held: The district court did not err in denying Defendant’s motion to suppress.  The suspect carry-on bag was discovered during a lawful investigation because the officers were given permission to search the bus by the bus driver.  In addition, Defendant voluntarily abandoned the suspect carry-on bag and thus lacks standing to challenge its search.

United States v. Heineman, No. 13-4043 (10th Cir. Sep. 15, 2014) 2014 WL 4548863

Defendant was convicted on one count of sending an interstate threat, under 18 U.S.C. § 875(c), after Defendant sent three e-mails espousing white supremacist ideology to a University of Utah professor, including one which made the professor fear for his safety and his family’s safety.  Defendant appealed, arguing that his conviction violated the First Amendment of the United States Constitution because he did not intend the recipient to feel threatened.  

Held: Defendant’s conviction violated the First Amendment because the United States Supreme Court held in Virginia v. Black, 538 U.S. 343 (2003), that the government is required to prove that a defendant intended to make the target of a threat feel threatened.  Without the intent to threaten, a defendant’s actions could merely constitute an espousal of hateful, yet protected speech.  In this case, the district court only found that Defendant knowingly sent the e-mails to the professor, and not that he intended the professor to feel threatened by them.

United States v. Brune, No. 12-3322 (10th Cir. Sep. 19, 2014) 2014 WL 4654572

Defendant was arrested for failing to update his sex offender status as required by state and federal law.  In concert with his arrest, authorities found child pornography in Defendant’s possession.  Defendant was ultimately convicted on the registration violation and the pornography violation.  In response, Defendant appealed, arguing that: (1) a subsection of the Sex Offender Registration and Notification Act (SORNA) is unconstitutional because it exceeds Congress’s authority under the Necessary and Proper Clause, and (2) that 18 U.S.C. § 2252(a)(5)(B) unconstitutionally and over-broadly criminalizes a significant amount of speech and conduct protected by the First Amendment.

Held: First, SORNA is constitutional and does not exceed Congress’s authority under the Necessary and Proper Clause because the Supreme Court has already held in United States v. Kebodeaux, 133 S. Ct. 2496 (2013), that SORNA was consistent with Congress’s powers under the Constitution because the government maintains a special relationship with a defendant even after a sentence is served.  Second, 18 U.S.C. § 2252(a)(5)(B) is facially constitutional because there are no examples of constitutionally valuable speech that might be punishable under the statute and because the phrase “any other material” in the statute should be construed as like in kind to and no more expansive than “book, magazine, periodical, film, videotape, and computer disk.”

Andrew J. Figliuzzi is a second-year student at Baylor University School of Law. His criminal law experience includes internship stints at FBI headquarters, FBI Austin, the U.S. Attorney’s Office for the Western District of Texas, and the Harris County District Attorney’s Office. In his free time, Andrew enjoys volunteering as a Guardian Ad Litem for abused and neglected children.


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This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.