Public Defense

By Chris Goddu

Portalla

Evidence sufficient that D intended to agree to drug conspiracy or advance its goals where there was evidence that D gave co-conspirators false employment credentials to enable them to purchase expensive homes and cars, facilitating drug enterprise, and volunteered to provide cell phones under fake names, advising cooperator to discard them after a month, and acquire a new one after under a fake name, and telling him that he had done this for others. Evidence sufficient for money laundering where there was evidence that D was told customer was drug dealer who was interested in purchasing throwaway cell phones under fake names and that he had considered laundering money.

07/27/07

Gil-Carmona

Any constitutional error in determination by judge rather than jury that a vessel is subject to the jurisdiction of the United States under 46 USC 70504(a) was harmless where vessel was indisputably located within contiguous zone of United States, less than 24 nautical miles from Puerto Rico.

07/24/07

Teleguz

No error in failure to give entrapment instruction where government agent put pressure on co-defendants to obtain weapons, and co-defendants then obtained them from D. Entrapment is a personal defense. Also, no showing of any resistance on part of D to supplying weapons. No abuse of discretion in precluding D from arguing entrapment defense in closing. Statute prohibiting possession of firearms with obliterated serial numbers (18 USC 922(k)) not impermissible exercise of Commerce Clause power. No error in denial of motion to suppress statements made after D waived Miranda, remained silent in response to two questions, then answered a third, after which he asked for lawyer. D?s choice to selectively answer questions after Miranda waiver is not itself unequivocal assertion of right to remain silent. Evidence sufficient that D knew guns had obliterated serial numbers where he personally sold 8 of them, then arranged for sale of another, and there was testimony that co-conspirator purchased guns with intact serial numbers for D that were similar to those D sold before.

07/19/07

Diaz

Denial of suppression affirmed where court found that D?s wife voluntarily consented to entry into home, and D?s cellphone, which was seized, was in plain view. Court?s comment that it only had agent?s testimony concerning consent, and D did not testify, did not amount to shifting the burden of proof on consent to D; rather it was comment on the evidence it had before it to make its decision. Denial of motion for mistrial on basis of agent?s testimony in drug case that D had admitted previously entering country illegally not error where evidence against D, including confession and numerous records of calls to co-conspirator corresponding to times D sold drugs, was strong, and remark about D?s admission to illegal entry was fleeting and isolated.

07/18/07

Carpenter ? Important.

No error in new trial grant on grounds that government?s use of inflammatory language in closing denied D fair trial where government repeatedly referred to D?s investment strategy as ?gambling? and repeatedly used gambling metaphors and terminology in arguing that he had defrauded his clients. Issue preserved where D moved in limine and made several trial objections to introduction of testimony relating to D?s investment strategy and losses. Appellate review of district court?s preservation determination is deferential. There is no rule that preserved objections to the admission of evidence cannot also cover closing arguments based on that evidence. No unfairness to the government in granting new trial in absence of objection to closing where district court warned repeatedly of potential prejudice of evidence characterizing D?s investment strategy and government ignored these and resorted to repeated gambling metaphors. Where government, over 18 times, referred to gambling in a pejorative sense despite court warning against distracting jurors from elements of crime, arguments were improper. No abuse of discretion in ruling that it could not be said with confidence that improper closing did not taint verdict. No jurisdiction to hear merits of D?s cross-appeal re: denial of motion for acquittal under collateral order doctrine. No double jeopardy claim where conviction vacated for legal error, and so no double jeopardy right that D was unable to vindicate if not permitted to challenge sufficiency of evidence. Dissent argues that plain error should have been applied to improper closing issue.

07/13/07

Fisher

Murder for hire statute (18 USC 1512) provides for extraterritorial federal jurisdiction and so covers murders that are to take place outside U.S. No plain error in instruction that element of use of a facility in interstate commerce (in pre-2004 version of 18 USC 1512(a)) could be satisfied by evidence of use of a facility of interstate commerce and not require interstate usage, where circuits that have addressed issue conclude that interstate usage not required, congress then clarified definition by later changing ?in? to ?of? in statute, and in any case there was evidence that D used cellphone to call Canada in murder plan. District court need not consider late-filed sentencing memoranda. No prejudice in any case where arguments in memorandum were in objections to PSR. Other minor issues re: ex parte contact, 404(b) evidence, whether murder for hire encompasses murder for favors.

07/12/07

McFarlane

Probable cause to arrest where police saw chase between two men after hearing gun shots, then learned from one participant that the other had tried to shoot him, and alleged shooter reached into trash barrel, appearing to hide something. No abuse of discretion in failing to give defense instruction on constructive possession, applying to specific facts in case, where court gave a correct instruction and where defense instruction could have interfered with jury?s fact-finding role because it might suggest what the court?s view of the evidence was. No plain error in instruction concerning indictment that it is a judgment by an earlier, larger jury that there is probable cause to believe that the defendant did it where the court also instructed that the indictment was not evidence of guilt and could not be used as proof of guilt. No plain error in submitting indictment to jury that contained alias that was irrelevant to case where no evidence it affected outcome and neither government not court ever referred to alias.

07/12/07

Lino

Drug distribution felony that takes place during the course of ongoing conspiracy counts as prior felony drug conviction under 21 USC 841(b)(1)(B) enhancement where D continued to participate in conspiracy after the prior conviction. Increase in criminal history category is not a basis for adjustment in sentence to credit time served for offense that constitutes relevant conduct and is basis for increase in offense level under 5G1.3(b). Sentence reasonable where court said it believed guidelines were advisory, went below guideline sentencing range on basis that criminal history was overstated, and rejected D?s argument that he should get credit for time served in state custody.

07/11/07

Mittel-Carey ? Important.

Suppression grant upheld. D in custody where search of home began at 6:25 AM, eight officers present, D confronted with unholstered gun in his bedroom, officers maintained control over D, interrogation lasted between ninety minutes and two hours, and one officer made coercive statements to D which were designed to elicit cooperation but avoid giving Miranda warnings, such as that D was looking at a lot of jail time, he could get acceptance of responsibility, those who cooperated at first tended to get a better deal, and, while D had a right to a lawyer, the lawyer would tell him not to talk. Even though D was in his own home, level of physical control exerted over him (e.g., D ordered to dress, go downstairs, told where to sit, physically separated from girlfriend, accompanied when allowed to move, even to bathroom), weighed in favor of custody.

07/02/07

Nascimento

Evidence sufficient, ?if barely? to constitute RICO enterprise where members pooled and shared resources, including cache of guns, group exhibited cohesion over time, individuals had sense of belonging and self-identified as members of group, and group had well-honed set of goals. No error in instruction that enterprise need not have ascertainable structure. Government did not have burden of showing enterprise operated during complete 8 year period mentioned in indictment where government presented ample proof that single enterprise existed during 5 year period, 20 of 21 racketeering acts were alleged to have occurred during 5 year period, so indictment gave Ds fair notice of focus of charges and government gained no benefit from describing slightly longer period in indictment. RICO statute does not require more than de minimus effects on interstate commerce, even where enterprise is not engaged in economic activity. ?Affect? as used in RICO statute is not restricted to conduct producing detrimental effects on commerce. RICO statute as applied to enterprise engaged in exclusively noneconomic criminal activity is not unconstitutional by violating Commerce Clause. Evidence sufficient to show de minimus connection between enterprise conduct and interstate commerce where enterprise purchased large amount of guns and member crossed state lines to purchase gun and add to cache. Evidence sufficient to show shooting connected to involvement in enterprise. Evidence sufficient for connection between racketeering act and enterprise under Violent Conduct in Aid of Racketeering statute where shooting expected of defendant by reason of membership in enterprise. No Double Jeopardy violation in convictions on substantive RICO offense, RICO conspiracy and VICAR conspiracy to commit murder. No error in denial of motion to suppress where police found gun frame in cabinet eight to ten feet away from D, for whom they had arrest warrant and who had been escorted to his bedroom so that he could put on clothes, cabinet was in D?s closet, and D was unrestrained so that cabinet was within D?s immediate control.

06/28/07

Palacios

In illegal re-entry case, where D conceded that he had been deported and re-entered without permission, evidence of alienage sufficient despite no direct evidence such as fingerprint evidence tying him to Guatemalan birth certificate in ?Alien File? nor any admission by him that his birth date was the same as that listed on birth certificate. Circumstantial evidence that D appeared to be same man shown in picture on Guatemalan identity document, even though court never articulated a finding to that effect, supported verdict, as did information on a Record of Deportable Alien prepared during detention pending deportation which matched information in ?Alien File? associated with D. Court bound to uphold Almendarez-Torres holding that prior convictions need not be charged in indictment and found by jury to support enhancement unless and until Supreme Court overrules it.

06/27/07

Barnes

No error in denial of Franks motion where D contested statement in affidavit that CI saw large quantity of crack in D?s home where other statements sufficient for probable cause. CI reliable in spite of claim that D would sell crack to woman at certain address when in fact he sold powder to her. Sufficient nexus to home where police saw D leave from residence and sell from his car. Where CI stated where D lived and police saw D exit residence, drive away and sell drugs on day of arrest, sufficient evidence of drug dealing at residence. Evidence sufficient to support guilty verdict where extensive evidence linked D to drugs at residence where D seen leaving residence twice: once he left he went into his car, in which police found crack, D told police after arrest he was coming from his residence at the address, no one else was in home and bills were addressed to D, and cable service had been in his name for four years. Credibility issues not entertained on appellate review for sufficiency. Prior conviction exception in Almendarez-Torres remains good law in this circuit.

Full post as published by First Circuit Federal Defender Blog on August 03, 2007 (boomark / email).