Public Defense

August and September First Circuit Case Summaries

By Chris Goddu

Tom ? Important.

Sentence of 36 months? probation in insider trading case (15 USC 78j(b) and 78ff(a)) unreasonable where guideline range was 37-46 months. Concern with disparity among Ds is primarily a national concern, not concern about Ds in a particular case or court. Focus on co-D disparity tends to thwart national uniformity. Disparities with sentences imposed by other judges on co-Ds play little role in analyzing disparity. Where D was co-D?s mentor and senior, made significant profits, and was dominant figure in obstructing justice, and co-D cooperated with govt while D did not, D and co-D were not similarly situated. Lenient sentence undermined congressional interest in deterring white-collar crime. Availability of other sanctions (SEC) did not justify sentence. Some term of imprisonment required for sentence to be reasonable. Community confinement cannot substitute for imprisonment on sentence within Zone D under USSG 5C1.1(e)(2).

09/21/07

Azubike ? Important.

Reversal. Though ?close,? evidence sufficient for heroin conspiracy conviction where it was undisputed that there was substantial circumstantial evidence that D knew that briefcase he was retrieving contained something illegal, and there was evidence that D knew it was drugs because he indicated conversation should not take place over telephone, he had close association with others who had organizational role in conspiracy, and it is reasonable to infer knowledge where D is trusted with a large amount of drugs. Prosecutorial misconduct where govt admitted that its recitation of evidence in closing concerning whether there was evidence that D knew man at center of conspiracy was incorrect. Where misstatement was made twice during closing argument, (once after a curative instruction, which caused judge to abandon that instruction), court?s admonition to jury that they should listen to tapes themselves not useful because tapes were very difficult to understand, case was close, and misstatements went to heart of case, misconduct was prejudicial. Dissent argues evidence insufficient.

09/19/07

Thongsophaporn

No Miranda violation where, after D said he did not want to talk with agents, one agent remained in room with D and stayed silent for five minutes, after which D asked for water then asked ?what?s going on,? to which agent responded that D knew why he was there, D responded ?to set up the Big One,? agent asked what he meant, D said to help get cocaine dealer, agent said he?d like to talk with D but D had refused to answer and he could answer some questions but not others, then D said he wanted to talk and was read Miranda rights second time. Under these circumstances, D initiated further communication of his own free will. Mere silent presence in room insufficient to rise to unlawful coercion or pressure. Gun enhancement under USSG 2D1.1(b)(1) applicable where drug activity occurred in D?s home, there was person named Addi living in rear bedroom of home whom D knew to have a gun, guns were found in rear bedroom, one of D?s drug customers said that she gave, at D?s request, money to a person depicted in a lineup photo, and the government at sentencing identified the man in the lineup photo as Addi, without objection from D.

09/18/07

Mangual-Garcia

Introduction of evidence of what the government admitted at trial was a separate drug conspiracy did not violate Brady where unclear how D could have further used information in trial and in any event D did not move for continuance. Even if introduction of evidence was prosecutorial misconduct, no error denying new trial motion where case was not close, and court repeatedly instructed jury not to consider evidence of the other conspiracy. No error in relying in part on FBI letter, whose author was not subject to cross-examination, in making preliminary determination of whether statements of co-conspirator would be admissible, since preliminary admissibility determinations may be made on basis of evidence which itself is inadmissible. No plain error in failure to make final Petrozziello determination where there was evidence that, though co-conspirator was government informant for period of time before and after he made statements at issue, he was not government informant at time of statements. Where cooperating witness testified falsely that he did not know whether govt intended to prosecute him, govt failed to correct testimony, but D, knowing it was false, did not raise issue, issue was waived. No plain error in admitting statements concerning a larger, more violent organization than conspiracy with which D charged where comments gave background and did not connect D to activity. Evidence of constructive possession sufficient where evidence inter alia that D was going to pay person who placed drugs on plane and that courier was supposed to deliver them to D. No error in failure to include example of constructive possession as having dominion and control over area where drug is found. Prosecutor?s comments that D could have introduced telephone bills or other bills to show that he was not in New Jersey during time of conspiracy were not a comment on D?s failure to testify where D invited the comment by saying that the government could have introduced telephone bills, etc. to prove that D was in New Jersey at the time. Though court failed to state final guidelines calculation in court, it could be inferred from PSR and objections to adjustments that court sustained or rejected. No plain error in drug quantity determination of 50k cocaine where there was testimony that 4 k was shipped every 2-3 weeks for 2 year period, even if government informant?s drugs should not be counted. Where Ds? sentence ranges exceeded 24 months, and court merely stated in explanation of where in the range it sentenced Ds that ?it had considered the factors it was required to consider under 18 USC 3553(a), statement was deficient as a matter of law. Error not plain, however, where no evidence that district court considered a significant improper factor, failed to consider a significant proper factor, or made a significant error in balancing the factors. Other minor issues re: prosecutorial misconduct; cumulative effect of errors, minor role.

09/17/07 Hunt ? Important. District court cannot qualify D for safety valve by reducing (by downward departure) his criminal history category to I under USSG 4A1.3. Booker does not render advisory the requirement of 18 USC 3553(f) that D have 0 or 1 criminal history points to qualify for safety valve.

09/14/07

Beltran

Evidence sufficient in copyright infringement and trafficking in counterfeit labels, goods and services where Ds owned video stores that rented and sold copied motion pictures, equipment for copying on large scale was located in cellar next to D?s residence and there was permanent injunction against D barring him from reproducing copyrighted movies. Manufacturing enhancement of copyright infringement guideline (USSG 2B5.3(a), (b)(3)) not double counting, since not all infringement involves manufacturing. Minor issues re: certificate of copyright, search warrant, loss calculation, role in the offense, obstruction of justice.

09/14/07

Desrosier

In state habeas case, MA state appeals court reversal of Superior Court ruling that D?s guilty plea was not knowing and intelligent, in spite of the fact that lower court never recited elements of first and second degree murder, was not an unreasonable application of Supreme Court precedent, since Supreme Court has said that judge is not required to explain elements, that defense counsel need not say outright that he has explained elements to D, that it may be appropriate to presume that a defense counsel has explained nature of offense in sufficient detail that D is aware of what he is pleading to, and here D admitted at plea hearing that he had discussed defenses and pros and cons of having a trial, and attorney later testified that he and client had discussed and assessed everything.

08/31/08

Holloway ? Important.

Massachusetts charging document stating that D did ?assault and beat? victim sufficient to establish that conviction was for violent felony under Armed Career Criminal Act (18 USC 924(e)(2)(B)). Violent felony decision rests on prior panel precedent that could only be overturned by en banc court. No Fourth Amendment seizure where D, upon being asked for identification, replied that he did not have to give it, then shoved someone into police officer and fled into apartment. No submission to authority in responding to question, where request for identification not a seizure.

08/31/07

Turner

Conspiracy under Hobbs Act constitutes crime of violence under 18 USC 924(c). Evidence sufficient for attempted robbery where D and co-Ds planned offense in detail, assembled weapons and other robbery equipment, prepared vehicles, surveyed target, practiced dry runs, and gathered at designated assembly point on day of robbery. Geographical proximity to planned conduct unnecessary, and attempt to abandon plan after seeing police irrelevant. Interstate commerce requirement for Hobbs Act conviction need only show realistic probability of de minimis effect on interstate commerce. In conspiracy prosecution, fact that robbery was impossible (it was sting operation) does not mean it could not have impact on interstate commerce. No error in vicarious entrapment instruction where it allowed for situation where co-D on his own induces D into criminal enterprise, and government condones it. Any error in instruction saying that government must ?target? D was harmless, where evidence strong that there was no improper inducement of D and that D was predisposed to commit crime. Admission of co-conspirator statements made before date D joined conspiracy, if error, were harmless as they were only cumulative of kinds of statements made after D joined, D himself made similar statements, and statements were not emphasized by govt. No Bruton error where statements did not directly implicate D. No Crawford error where secretly recorded statements were not testimonial. Prior firearm convictions probative to rebut entrapment defense, especially where evidence D provided firearms in instant offense. Radio frequency detector probative of sophisticated nature of conspiracy. No abuse of discretion in failing to sever felon-in-possession counts from robbery counts where they arose out of same conduct, D stipulated to status as convicted felon, and prior convictions part of government?s rebuttal case against entrapment defense. Failure to sever coD?s not abuse of discretion where testimony of entrapment D would obtain from coD was limited since it did not tend to refute overwhelming evidence of predisposition nor did it show improper inducement. No Brady violation where material merely cumulative, did nothing to dispel predisposition, and so no suggestion of reasonable probability of different result. No acceptance of responsibility where B went to trial with a weak claim of entrapment. No plain Booker error where district court refused to sentence D at the bottom of the guideline range and sentencing materials gave no indication that judge would be inclined to impose lower sentence.

08/30/07

Mills

Sentence of probation for illegal reentry case was error where apparently based upon clearly erroneous belief that D had been in custody on basis of federal charge rather than on unrelated state charge. Placement of federal detainer against D while in state custody does not entitle D to credit for time in state custody. Decision to sentence D to probation in consideration of detention with state authorities troubling, as court should leave determination of eligibility for credit for time served to AG and BOP.

08/30/07

Guadalupe-Rivera

No abuse of discretion in failing to hold evidentiary hearing regarding whether two prior convictions were part of ongoing conspiracy to which D pleaded guilty where there was no evidence that cooperating witnesses would testify that convictions were part of conspiracy, apart from D?s bare statement that they would, and law enforcement notes of interviews with the witnesses, which were in Spanish, unaccompanied by translations. It ?is essential that court provide D with all information relevant to his sentence on which the court intends to rely so that D had adequate opportunity to contest any inaccuracies or present other relevant factors.? While it was error to only tell defense counsel that D?s juvenile record (protected as confidential information under Puerto Rico law) involved two counts of weapons violations, it was harmless where D conceded knowledge of his juvenile record.

08/22/07

Stroman

Reasonable suspicion for stop where D was seated in oddly parked car near location of crime in Maine, car had MA plates & break-in suspect was associated with MA, it was very early hour of morning, D left car as officer approached and ignored directions to stop, and was wearing leather coat in July, suggesting he might have been hiding weapon. Characterizing evidence as ?not contradicted? was not a comment on the failure to testify where prosecutor was faced with D?s claim that his confession was unreliable, and prosecutor was attempting to corroborate confession.

08/22/07

Brown

No error in denial of suppression where confidential informant?s reliability sufficiently demonstrated, even though he could not give exact description of D, by details he provided about D?s method of engaging in criminal activity: specified type and quantity of drugs in transit, D?s method of travel, name of confederate, date, time, and place of arrival, identity of person who would meet him, exact vehicle used, and his intended destination. Probable cause for arrest after traffic stop where D made inconsistent statements and lied about his name, age, and ownership of bags he placed in car, and police dog alerted to truck, then to bag inside truck, which yielded drugs. No error in refusal to admit evidence of D?s whereabouts 3 weeks prior to date of charged crime, where government?s case did not depend on any fact related to it. Under 21 USC 841(b)(1), attempt offenses count as felony drug offenses and so can be enhancement predicates.

08/21/07

Cadieux

Statements in 911 call non-testimonial and so did not violate Confrontation Clause where caller spoke about events as they were occurring, she requested police assistance, questions asked were tailored to identify location of emergency, its nature, and perpetrator, caller was hysterical, and environment was not tranquil nor apparently safe. MA indecent assault and battery on a child under 14 counts as violent felony under ACCA. Right to revisit issue is reserved by court if and when a person is convicted of indecent a & b on a child under 14 for consensual sexual contact with a person of the same or similar age. Prior convictions used to enhance sentence need not be charged in indictment, found beyond a reasonable doubt, or admitted by defendant.

08/21/08

Smith

Severity of punishment for failure to appear (18 USC 3146(b)(1)(A)) as required by terms of release from custody depends on severity of maximum sentence for offense in connection with which D was released. Where failure to appear relates to supervised release revocation hearing, relevant maximum is maximum for underlying offense which led to imposition of supervised release condition, not maximum for supervised release revocation.

08/20/07

Reiner

In travel to promote prostitution case, no error in failing to order Franks hearing on basis that affidavit omitted information that decades-old investigations of D?s business failed to result in prosecution, since omitted information irrelevant where district court was concerned with staleness and looked only to recent relevant information. Evidence of activity between 2000 and 2002 not too stale to establish probable cause for 2004 search warrant of health club alleged to be operating illicit prostitution business where it was type of criminal business that would most likely be unchanged over course of several years. No error in failure to grant mistrial after witness testified recalling conversation with D about FBI surveillance apparently based on complaints about under-age girls at club where court struck testimony and gave curative instruction. No plain error in enhancement for more than one victim under USSG 2G1.1(d) where D ran business, and there was evidence most women either traveled or were transported, persuaded, induced, or enticed into engaging in commercial sex act. Within-guideline sentence not unreasonable despite medical difficulties in D?s family and the fact that D, a lawyer, was ?a pillar of the community.? No unwarranted disparity on the basis of more lenient sentences for co-D?s where national uniformity is focus, co-D?s accepted responsibility and cooperated with government while D went to trial. No violation of parsimony principle in D?s within-guidelines sentence. In determining forfeiture amount, members of conspiracy substantively liable for foreseeable conduct of other members. Where sole purpose of health club was prostitution, income derived from activities designed to hide illegality subject to forfeiture.

08/17/07

Jose

In bulk cash smuggling case (31 U.S.C. 5332), no plain error violation of Excessive Fines clause of Eighth Amendment in ordering forfeiture of entire amount smuggled: where D claimed to have found $114k in trash that he attempted to smuggle, and bulk cash smuggling act was aimed at money launderers, drug traffickers, tax evaders and terrorists, statute was principally designed for persons like D; forfeiture was only 4 times maximum fine allowable for offense; Congress clearly expressed its view that bulk cash smuggling is a serious offense; since D claimed to have found the cash, forfeiture did not deprive him of his livelihood.

08/17/07

Taylor ? Important.

Sentence of 5 years probation, including one year in halfway house unreasonable in tax fraud case where guidelines were 30-37 months imprisonment. Where party challenges sentence as unreasonable because court misconstrued departure, appellate review should include whether court correctly interpreted departure policy statement, correctly applied it to facts of case, then ultimately whether sentence was reasonable, including weighing departure considerations against other 3553(a) factors. Where court termed D?s good works ?extraordinary,? it properly interpreted requirements of USSG 5H1.11. Where substantial testimony that D had gone out of his way to help the community, that he went above and beyond his duties as a teacher to help pupils, and that Boston Public School system would allow D to continue teaching so long as he was not sent to prison, it was reasonable to interpret the facts to find that D engaged in extraordinary good works, and that below guideline sentence was called for under 5H1.11. Where D committed tax fraud 16 times over 4 year period, D was not indigent, asked clients to misinform IRS and provide inaccurate testimony, and no indication D accepted responsibility for crime, sentence did not give full consideration to nature and circumstances of crime. Too much weight given to fact that D?s absence from school would negatively affect his students, no reason why D is aberration from conclusion that jail time deters white collar crime, and sentence does not reasonably reflect need to avoid unwarranted disparities under 3553(a)(6), particularly those between white and blue collar defendants.

08/16/07

Fink

No error in failure to prove beyond reasonable doubt that prior drug conviction used as 21 USC 851 enhancement was distinct from drug conspiracy of instant conviction. No violation of equal protection on basis that D?s prior conviction counted as felony predicate in Rhode Island, whereas same conduct in MA would not constitute a felony and so would not count for enhancement. Where conviction occurred prior to, and involved different drugs from offenses involved in federal drug conspiracy conviction, the two convictions are separate and distinct and the earlier may be used to enhance the later. It was error to fail to grant a continuance for government to clarify meaning of state docket entry vacating prior conviction. MA assault and battery counts as crime of violence.

08/16/07

Stark

Intervening circumstances rendered third confession made by D, who was in police custody for 2 days following an illegal search, admissible where D received Miranda warnings, he was acting pro-actively to cooperate in controlled delivery and so was not acting from compulsion, he had sufficient time to reflect and decide if he wanted a lawyer, he was allowed to rest and have food, he gave confession to a new agent in a new location, and no abusive tactics used in initial stop, which was made pursuant to an ambiguously-worded statute. Where D opposed admission of evidence in a motion in limine but did not renew objection at trial, review is for plain error. Witness? mention of D?s arrest did not violate suppression order suppressing marijuana because it did not reference marijuana. No plain error where court answered jury question and said that jury could consider agent?s testimony that he met D at his arrest and Mirandized him, but jury could not consider evidence of arrest as proof of guilt, even if it was misleading because agent met D after arrest. Evidence sufficient to support jury finding that drug amount was greater than 100 kilos where D confessed to 350 kilos, and rule that D may not be convicted on his own uncorroborated statement does not apply to drug amount unless amount is used to increase sentence beyond maximum penalty. No error in finding D ineligible for safety valve where court found D had gun in possession and reasonably inferred D brought gun to protect himself and large store of drugs, so it was connected to drug-trafficking conduct.

08/14/07

Jiminez

No plain error in district court?s finding that D?s guilty plea was knowing and voluntary where D?s claim that he did not understand that mandatory minimum was 20 years was undercut by terms of plea agreement, representation that counsel had gone through agreement with D, court?s statement at hearing that there was 20 year man min, even though D claimed on appeal that he was confused by assertion that guideline range was lower. No plain error in finding that D?s plea to heroin distribution death resulting rested on adequate factual basis where government proffer included facts tightly tying a person to distribution of heroin ingested by two decedents, and that person named D as his supplier for over two years. Adequate factual basis for plea need not exclude plausible lines of defense at trial. No Apprendi error where death resulting element need not have been proven beyond a reasonable doubt where it was part of indictment, D admitted to it and D received less than 40 year statutory maximum. No foreseeability requirement for death resulting component of 18 USC 841(b)(1)(C) where D?s own conduct caused harm. Minor issues re: ineffective assistance; newly discovered evidence.

08/10/08

Charlton

No double jeopardy violation in declaring mistrial, ruling jury deadlocked, where jury reported it was at an impasse on a Friday morning, court instructed jurors to continue to deliberate; jurors stated at 4:39 Friday afternoon that they remained deadlocked, court gave Pattern Instruction Modified Allen Charge; jury said it would return on Monday to deliberate; jury sent out questions on Monday morning that court answered, and one hour and a half later jury said it was deadlocked and could not reach a unanimous verdict.

08/09/07

Weikert

Suspicionless collection and analysis of supervised releasee?s DNA through a blood sample, under the DNA Act, does not violate the Fourth Amendment. The constitutionality of the retention and searching of DNA profiles of those who have completed the term of supervised release is an open question, however.

08/08/07

Pratt

Where D did not object below, evidence sufficient for felon in possession conviction despite fact that court erred in failing to read to jury, before giving instructions, the content of stipulations to facts that gun travelled in interstate commerce and that D had been convicted of felony. Escape is crime of violence under Armed Career Criminal Act.

08/07/07

Duval ? Important.

Maine assault and battery conviction counted as ?violent felony? under ACC (18 USC 924(e)(1)) where, though offense is usually punishable only by a maximum of one year, D?s offense was punishable by up to 5 years on the basis of a recidivist statute, and so D convicted of ?recidivist a & b?. No plain error in determination that Maine a & b conviction constitutes crime of violence for purpose of ACCA. Late disclosure of Brady material did not prejudice D where he had opportunity to incorporate some material into defense strategy and other material came out on cross-examination. Denial of request for ATF payment records not error where government?s pattern of non-disclosure insufficient to establish likelihood of Brady violation, and any evidence would at most have been cumulative impeachment evidence. Gov?t conduct was clear violation of its obligations under Brady and Jencks Act - ?disclosure of Brady and Jencks Act material is not a suggestion, but a constitutional and statutory obligation.? No plain error in admitting statement as adoptive admission under F.R.E. 801(d)(2)(B), where testimony was statement made by co-D that co-D and D wanted to sell firearms, D remained silent and did not attempt to dissociate himself from it, and government laid foundation that conversation took place in small room and D was in room. No error in failure to specifically instruct jury as requested that knowledge alone insufficient to prove possession and that mere presence is insufficient to prove possession where court instructed that jury needed to find both power and intention to exercise dominion and control over something and that Ds knowingly possessed firearms in question. No error in failure to instruct that, in the absence of a government witness? testimony that prosecutor said in closing that jury could disregard, there was insufficient evidence to convict D where there was evidence that firearms were in trunk of car, D had keys to car, co-D appeared to avoid opening trunk when he saw police officers, and car did not contain guns when it was stolen days earlier. No constitutional violation in failure to prove prior convictions used as predicates under Armed Career Criminal Act to a jury.
08/07/07 D?Amico ? Important. Booker variance of 88%, down from GSR of 31-41 months to 4 months, unreasonable where grounds given were that D performed good works as city councilman and conviction itself would ruin D?s political career and impede ability to pursue career as lawyer. Part of D?s job was to be responsive to constituents, and the kinds of losses D could articulate as stemming from fact of conviction are those specific to white collar defendants, contrary to Congress? objective to eliminate disparity between treatment of economic crimes and other types of crimes. Hobbs Act extortion charge not duplicitous where indictment charged D with one count of interfering and attempting to interfere with interstate commerce through extortion, since attempts are lesser-included offenses of completed Hobbs Act violations. Evidence sufficient that D accepted payment in exchange for official act, even though payment came well after official act was approved. No evidence jury was presented with both a valid and a flawed theory of interstate commerce nexus, namely that money given to D in fact belonged to FBI, so could not support realistic probability that D?s conduct would affect interstate commerce. Closing error stating amount of money D was alleged to have taken in past from informant, which was identical to amount in present case and excluded by district court, did not require new trial where remark not deliberate distortion - there was testimony of a report of a prior payment, offered as reason FBI was interested in D; there was curative instruction ; and prejudice unlikely where focus of the trial was not on fact of payment but rather whether there was a quid pro quo.

08/07/07

Matthews

No constitutional violation in counting juvenile adjudications as predicates for Armed Career Criminal enhancements, even if state classifies juvenile proceedings as civil, rather than criminal. Where D was offered and declined a jury trial in juvenile adjudication, no due process violation in utilizing it as an ACC predicate. Government need not prove prior conviction used as sentence enhancer beyond reasonable doubt. State district court drug conviction with maximum allowable penalty of 2 and ½ years counted nevertheless as ?serious drug offense? under ACCA (18 USC 924(e)(2)(A), since statutory maximum penalty 10 years - statutory maximum -- not maximum allowed in MA district court ? controls under ACCA. No plain error in using conviction that was basis for felon in possession charge as also ACC predicate. Evidence sufficient for felon in possession conviction where there was testimony that officer saw D twice make movements to his waist, then run from police, then rise from crouching position near where gun was found, and testimony that gun was not there earlier in the day. No plain error in giving erroneous instruction that government had to prove that D had specific intent to disobey the law where there was no such burden, since erroneously increasing government?s burden of proof did not prejudice D.

08/03/07

Rivera-Hernandez

Evidence sufficient for money-laundering conviction despite acquittal on underlying predicate extortion under color of official right offense alleged as specified unlawful activity from which laundered money was derived, where there was evidence that D held a public office and received payment to secure a public contract through fraudulent invoices for payment. No improper comment on failure to testify where defense counsel began opening with statements about D?s biography and government asked to object ?unless the defendant is going to testify.? No abuse of discretion in ruling that state of mind hearsay exception inapplicable where statement not made contemporaneously with event that statement concerned. Co-conspirator exception inapplicable where statement not offered against D, but rather in his support. No error in failing to re-read jurors instructions on ?specific intent? and ?knowingly, willfully and unlawfully? where jurors specifically requested only that instructions on extortion and money-laundering be read. Other minor issues re: Brady, meetings between prosecutor and cooperating witnesses.

Full post as published by First Circuit Federal Defender Blog on October 04, 2007 (boomark / email).