Appellate Law

CA1: bookies and Booker

By S. COTUS

US v. Nguyen, Nos. 07-1010, 07-1011, 07-1012.  The facts here read like some kind of mafia flick.  Some guys lost a bet.  Some other guys came to collect.  It ends (and the case begins) with an ? indictment alleg[ing] that the men either used or conspired to use extortionate means for the purpose of collecting an extension of credit in violation of 18 U.S.C. §§ 894 and 2.?  [This sentence seems to have an error in it.]

Starting from the end, an argument is raised about the prosecutor?s characterization of evidence.  The First says that it was barely a reasonable inference, but that inference is ?less comfortable.?  So, whatever the case, the First says it isn?t plain error, and gives the green light there.

There seems to be some argument regarding whether the jury instruction were strangely confusing (stating reasonable doubt in the negative).  The First lets it pass, but explains how important it is to stick to the pattern instruction. 

I got your post right here.  His name is Paul Revere... 

The First holds that it wasn?t an abuse of discretion to exclude some evidence regarding whether the fight was really about some nicnaming. 

At one point one of the defendants filed a pro se motion for a new attorney, arguing that he was being coerced into pleading guilty.  Obviously, that failed.  But, the facts there are interesting, too.  Apparently, the client came into contact with a ?Self-professed law student? who changed his attitude toward his lawyer.  But, all and all, I just chalk this up to a difficult client.

Sentencing-wise, this opinion isn?t too notable, but there is this interesting description of post-Booker jurisprudence:

...The Supreme Court has said that it is not improper for a court of appeal to presume that a within-guideline sentence is reasonable. Rita v. United States, 127 S. Ct. 2456, 2467-68 (2007). But moreover, contrary to Nguyen's contention, we do not attach a presumption of reasonableness to within-guideline sentences. ...

The rest of the opinion concentrates on the use of a condition of parole to make someone a career offender, but the First, says that this is really a matter of U.S.S.G. § 4A1.2(e). 

Full post as published by Appellate Law and Practice on April 11, 2008 (boomark / email).