Public Defense

First Circuit Summaries - June 2007

By Chris Goddu

Though D agreed to stipulation that co-D pleaded to conspiracy, where throughout he expressed reservation that admission of plea presented possible Bruton problem, no intentional relinquishment of appellate right. Where D did not raise Crawford objection to admissibility of plea until jury asked to see stipulation, D forfeited that argument. Admission of stipulation that co-D plead guilty was plain Crawford error, but it did not affect D?s substantial rights where prosecution?s use of stipulation limited, court instructed jury that it could not use stipulation as evidence that D participated in conspiracy, and there was ample evidence of D?s participation in conspiracy. Court may consider relevant conduct outside the statute of limitations in sentencing - Booker does not affect this as it does not prohibit judicial factfinding. 4-level role in the offense enhancement (USSG 3B1.1(a)) not error where D conceived of scheme, recruited participants, decided which goods to steal, and controlled payout of money. No plain Booker error where D could not show court would have sentenced more leniently under advisory guidelines, since D was sentenced at top of applicable guideline range, court considered exceeding the guidelines, and said in all likelihood it would have imposed same sentence under advisory guidelines.

06/15/07

Shelton

Sufficiency standard for insanity defense is greater hurdle that usual sufficiency standard - verdict rejected only if no reasonable trier of fact could have failed to find criminal insanity at the time of offense established by clear and convincing evidence. Sufficient evidence to support rejection of insanity defense where court gave less weight to D?s expert psychiatric witness on grounds he only conducted two interviews with D, assumed D was truthful about his memory, was not very familiar with facts of offense and so failed to evaluate his opinion in light of those facts. Gov?t expert observed D over several months, conducted several tests, and evaluated D in light of facts of robbery. 262 month sentence for aggravated bank robbery reasonable where it was at bottom end of guideline range, and court weighed disturbing family and psychological history against history of violence and need to protect public.

06/15/07

Hernandez

No constructive amendment of indictment where indictment only charged heroin importation, court initially instructed jury it could return guilty verdict on heroin or cocaine importation, but then corrected in later instruction. No error in referring to evidence in instruction in explaining how, if jury believed evidence beyond reasonable doubt, it would relate to charge. No Brady error where, 5 days into trial, government discovered that D?s cell phone records contained codes that could identify location of phone while in use and corroborate cooperator?s testimony about meeting with D, since evidence was inculpatory, not exculpatory. Where no evidence of deliberate withholding, no abuse of discretion in admitting evidence. Other minor issue re: mere presence.

06/13/07

Espinoza -- Important.

Suppression upheld. No reasonable suspicion of criminal activity based upon observation of extended passenger van bearing Texas license plates traveling on a highway in Massachusetts, awareness that van was registered to person whose name had surfaced (not as target) during previous investigation for human smuggling, and knowledge of interception of two or three similar vans for illegal aliens in Boston area within past year. District court conclusion that D was seized when agent approached van with holstered gun and identified himself as an immigration officer, displayed badge and asked questions, and indicated in commanding tone that he wanted driver to shut off van?s engine not clearly erroneous. It was equally plausible that a reasonable person in D?s shoes would have felt free to leave or would not have felt free to leave. Inferences from facts as well as findings of facts are subject to clear error review.

06/13/07

St. Pierre

Exigent circumstances justified entry into D?s house where cooperator?s failure to return to house could have alerted D to police presence, causing him to destroy drugs. Search of D?s pants at booking after arrest proper as inventory search.

06/13/07

Godin

Where career offender sentence within statutory maximum, no jury finding required. Where predicate offenses had separate docket numbers and Judgment and Commitment orders, they were not consolidated under USSG 4A1.2,cmt.3. Single common scheme or plan under USSG 4A1.2,cmt.3 should be given ?ordinary reading?. Burglaries of two different apartments committed by one person several days apart need more in common than a mode of action and a motive to connect them under the provision. 262-month prison sentence based on robbery with brandishing gun and career offender predicates that amounted to ?trashing two apartments,? for a defendant with history of horrendous childhood abuse, mental illness and other difficult circumstances could have been lower, but there was plausible explanation and defensible overall result, where there was escalating violence in D?s life and use of marijuana. ?President may choose to commute sentence? if she rehabilitates herself.

06/07/07

Desimone

In tax fraud case, failure to present ground for admission of evidence was at least forfeiture, if not waiver, of issue on appeal. No plain error in failure to admit as state of mind evidence conversation D had with attorney about contacting accountant to determine whether he could pay debt from account into which funds from art sale had been deposited, where it was not critical to defense as it did not go to issue of how funds should be treated for tax purposes, the erroneous tax return mischaracterizing funds was signed a year later than that conversation, and the evidence could have harmed D as much as helped. Failure to admit evidence purporting to show good faith reliance on accountant not error where no evidence D had provided accountant with information of sources of funds. Evidence that accountant was called by lawyer about debt not admissible as prior inconsistent statement where accountant testified that he didn?t remember conversation, not that it didn?t happen. Where D elicited substance of accountant?s grand jury testimony any error in admitting the testimony as evidence to rebut charge of recent fabrication (F.R.Evid. 801(d)(1)(B))harmless. Possible existence of an earlier and different motive to lie would not prevent admission of a prior consistent statement designed to rebut a subsequent different claim of fabrication. No error in admission of summary chart depicting net profit from sales of paintings under Fed. R. Evid. 703. Cross-examination by D opened the door to testimony concerning facts of lawsuit for which D gave settlement, where defense crossed accountant on whether settlement could be construed as business expense, and accountant testified that he did not know if every type of litigation could be so construed, and defense asked if he would have to know what the facts were.

06/06/07

Earle

In illegal re-entry case, testimonial status and admissibility under Crawford of Certificate of Non-Existence of Record (CNR) that D had obtained permission to re-apply for admission to country after deportation is serious issue. Any error in admission was harmless, however, where another government witness testified to searching records and finding no evidence of consent to enter. Lawfulness of deportation is not element of offense of illegal re-entry. Where state complaint charged that D, by means of dangerous weapon, did assault and beat the Commonwealth of Massachusetts in violation of G.L.c.265, s.15A, district court did not err in relying on statutory definition, and ignoring language in complaint, to find that D had prior crime of violence involving the use of force against the person of another, warranting 16-level enhancement under USSG 2L1.2(b)(1)(A). Prior conviction need not be proven beyond reasonable doubt under Almendarez-Torres. Court bound to follow Supreme Court precedent until expressly overruled.

06/04/07

Maldonado-Rivera

No abuse of discretion in failure to grant motion for new trial based on newly discovered evidence. No Brady issue where D never raised Brady, and no indication government was aware of evidence before D raised it in post-trial motion - at most, government inquired into evidence not under its control and never followed up. Where D conceded he was not raising knowing use of false testimony in district court, he could not raise it on appeal. Because D could have discovered information in file of housing authority indicating that abandoned car was parked in space police officer claimed to have been parked in when she witnessed D with gun, and issue of opportunity to observe D was clearly important at trial, D did not exercise due diligence, and so was not entitled to grant of new trial motion. Other minor issues.

Full post as published by First Circuit Federal Defender Blog on June 25, 2007 (boomark / email).