Public Defense

More October and November First Circuit Opinions

By Chris Goddu

Arango

No error in failure to grant third point for acceptance of responsibility (USSG 3E1.1(b)(2)) where one D notified govt of intent to plead on morning of trial, and other D notified on Wed before Mon scheduled start. Where case complex and govt had already filed trial brief, proposed voir dire, motion in limine, list of exhibits and witnesses, and proposed jury instructions, had spent significant time translating and transcribing phone conversations and preparing witnesses and generated voice exemplars, no error in ruling that pleas were ?untimely.? No requirement to find facts supporting drug weight beyond a reasonable doubt where maximum sentence for crime to which D plead was life. Evidence sufficient to support sentencing for 67 kilos of cocaine and $1.8 million. D has burden to provide evidence of inability to pay fine. Where court failed to explain sentence for one D completely, and only explained for other D why he did not get a longer sentence, deficient explanation was not error since neither D challenged reasonableness of sentence, court addressed at length two significant issues specifically contested, and one D received bottom of guideline sentence and other received below-guideline sentence. Other minor issues re: breach of plea agreement and leadership role.

10/31/07

Vega-Santiago

Fed. Rule Crim. Pr. 32(h) requiring court to give parties reasonable notice of departure from guidelines applies to variances as well as departures. While D did not receive notice before sentencing, notice nonetheless reasonable where D learned during colloquy that preceded formal sentencing. Counsel had opportunity to respond at length, counsel did not say that he was unprepared to respond, and court relied solely on well-known facts of crime and obvious conclusion that crime was not a classic carjacking. Ten year sentence on car-jacking, which was upward variance from 57-71 month guideline range, reasonable in light of unusually violent and risky nature of situation and D?s violent past. No clear error in determination that confession was voluntary, even though D had been hit in face earlier. Evidence of carjacking sufficient where victims identified D and D confessed, D found near site of abandoned stolen car and items stolen from scene, D matched description given by victims, and D had ammunition matching caliber of gun used in carjacking.No abuse of discretion in re-opening to allow government to put in evidence of interstate commerce that Nissan automobile is not manufactured in Puerto Rico. Other issues re: waiver of suggestive identification; disparity between oral and written pronouncement in sentencing.

10/31/07

Jimenez ? Important.

In identity misappropriation case, no error in admitting as relevant under F.R.E. 402 document on D?s computer disk entitled ?How to Create a New Identity,? handwritten lists of biographical information about people other than those whose identities were stolen, piles of high school and college transcripts of others, birth and death certificates of another person, and information about credit reporting agencies and County Clerk?s office, as evidence fleshed out jury?s sense of the crime, not D. No error under F.R.E. 404(b) in admission where it showed preparation and plan. The word ?person? in aggravated identity theft statute (18 USC 1028(a)(1)) includes the deceased. Extended discussion of rule of lenity.

10/30/07

Milo ? Important.

Time served (18 days) sentence unreasonable in 6000k marijuana cooperator case with 10 year man min and government recommendation of 75 months. No error in affording some weight to large forfeiture order in determining overall sentence. No error in affording some weight to charitable activities as evidence that D had turned life around, was genuinely contrite and would not re-offend. Episode of cocaine use did not render clearly erroneous court?s finding that D had turned life around, based on overall behavior, charitable works, supporting letters, and impression made by D?s allocution. Fact that D received acceptance of responsibility did not mean that he had already been given credit for contrition, since over 90% of drug traffickers who plead guilty get acceptance, whether truly contrite and unlikely to offend or not. D?s true contrition, and no likelihood of re-offending demonstrates that prison time is not needed to reform him, but need to deter others is major element of criminal sentencing. Where crime major, no prison time undermines public confidence in enforcement of law. There are reasons to give weight to govt recommendations for cooperation reductions, and judge?s adjustment to this is reviewable for reasonableness. While benefits of cooperation are worth paying the price, public interest suggests discounting D?s sentence no more than is necessary to elicit help for law enforcement. Taking into account both contrition and cooperation, it is far from clear that adequate basis could be furnished for no jail time.

10/29/07

Barnes ? Important.

Strip search justified where D arrested for drug trafficking crime. Evidence that D was suspected drug dealer in possession of drugs and that some drug dealers conceal drugs between buttocks did not itself give rise to individualized suspicion that D was ?cheeking? drugs and reasonable suspicion for visual body cavity search. Where first officer without reasonable suspicion ordered D to turn around, bend over and spread his cheeks, but D refused, then second officer said to first that D needed to be strip searched, second officer?s direction to first could supply reasonable suspicion on collective knowledge theory imputing second officer?s knowledge to first officer, provided that second officer had reasonable suspicion to believe that D cheeked drugs. Remand to determine whether informant tip that D cheeked drugs had sufficient indicia of reliability.

10/29/07

Codarcea

No clear error in determination of amount of loss under USSG 2B1.1(b)(1) attributable to D and reasonably foreseeable to him as acts of others taken in furtherance of conspiracy to commit bank fraud, where loss occurred in same time period, in same area, from ATMs compromised in same manner as those compromised by D, D was involved in conspiracy at beginning and at end, with no indication he withdrew.

10/23/07

Roy

It is not plain whether time spent in community confinement as part of supervised release after revocation should or should not count toward an aggregate limit on the maximum period of imprisonment for a series of revocations. Equation of home detention and community confinement is open question. No abuse of discretion in imposing 12 month incarceration with recommendation of proper medical treatment for high cholesterol, balancing serious nature of D?s conduct (3rd violation of having contact with D?s girlfriend?s children), with medical concerns.

10/19/07

Walker

In state habeas case, procedural default not excused by claim of actual innocence where proffered evidence of lack of premeditation - that bartender would testify that petitioner was leaving bar before altercation in front of bar ending in victim?s death - did not make it more likely than not that no reasonable juror would find petitioner guilty of premeditated murder. Under MA law, premeditation can be a matter of seconds, and evidence was cumulative where there was other evidence that petitioner had left bar and said he was going to his car.

10/18/07

Dugas

In state habeas case, no clear error in district court determination of no prejudice demonstrated in ineffective assistance claim, where on remand to district court to hold evidentiary hearing with expert arson testimony, court found D?s that expert?s critique of state?s chemical analysis, and his theory of origin and development of fire was unpersuasive, and his opinion of whether petitioner could have accessed place where fire was allegedly set would do little to undermine confidence in jury?s verdict.

10/16/07

Connolly

No error in denial of motion for new trial based on newly-discovered evidence. Standard of review for denial of motion for new trial does not differ where motion based upon governmental withholding of evidence. Lack of rescript opinion does not affect level of review. No error in determination that incarcerated witness? recantation to confidential informant unreliable, especially in light of pattern of demonstrable falsity in statements. Also, no evidence witness would perjure himself under oath, nor any indication how recantation, contained in FBI 302 report, could be introduced in evidence at trial. Where recantation was mere impeachment and to some extent cumulative, no abuse of discretion to find additional cross-examination of witness would not undermine confidence in jury verdict. Congressional report communicating low opinion of FBI?s Boston Office in its handling of organized crime matters not relevant to former FBI agent D?s trial, which was about the lawfulness of his conduct. Inconsistencies between trial testimony and later deposition testimony in civil cases insufficient to warrant judgment that they would undermine confidence in jury verdict. Government indictment of informant for a murder where informant testified that he had not participated in any murders would have little affect on jury where it had good reason not to believe everything he said given its knowledge of his nefarious past. No error in failure to grant evidentiary hearing. Other minor issues re: waiver of prosecutorial misconduct and manifest injustice claims.

10/11/07

Fortes

Where evidence of drug quantity that took D?s sentence out of default maximum 20 years was overwhelming and essentially uncontroverted, there was error but no plain Apprendi error since reliance on drug quantity did not impair fairness, integrity, or public reputation of judicial proceedings. No plain Booker error where no indication court would have imposed a lesser sentence if Guidelines had been advisory.

10/11/07

Newbert ? Important.

Where D permitted to withdraw plea based on new plausible evidence of innocence, he was not in breach of plea agreement and so did not waive right under F.R.E. 410 not to have plea agreement or associated statements admitted into evidence in later proceedings. Ambiguous language in plea agreements are construed against the government.

Full post as published by First Circuit Federal Defender Blog on November 19, 2007 (boomark / email).