Public Defense

Wrapping up March First Circuit decisions

By Chris Goddu

Nieves-Castano ? Important.

In unlawful possession of a machine gun case (18 USC 922(o)), mens rea evidence insufficient where, though D admitted possession of rifle and knowledge that it was an AK-47, statute requires knowledge that weapon is a machine gun. A machine gun is automatic, AK-47s are commercially produced only as semi-automatics and must be altered to convert into automatics; there was no evidence D had any expertise in firearms, and one expert testified that merely by looking at the weapon and not noticing small hole, she wouldn?t have been able to determine that firearm had been altered to fire automatically. Knowledge that one is guilty of some crime is not the same as knowledge that one is guilty of the crime charged. Possession of firearm in a school zone statute (18 USC 922(q)(2)(A)) does not violate due process on grounds that it provides no objective criteria for measuring 1000 foot distance where statute itself requires that D knew or reasonably should have known that firearm was within school zone, and First Circuit had endorsed construction of school zone drug offense statute requiring straight-line measurement to site of transaction rather than curtilage or exterior wall of building within which transaction occurred. Evidence sufficient that D knew she was within school zone where 3 minor children lived with D and 2 schools were nearby, one 670 feet away and one 550 feet away.

3/23/07

Torres-Velazquez

No clear error in six-level enhancement under USSG 2S1.1(b)(1) for knowledge that laundered funds were proceeds of drug offense where modus operandi of D and coDs was typical of drug organizations, D had two prior drug convictions, and there was large quantity (over $750,000) of cash. No plain error in applying two-level enhancement under USSG 2S1.1(b)(2)(B), even where section is inapplicable under note 3(c) if sole object of conspiracy is laundering funds under 18 USC 1957, since D plead guilty under 18 USC 1956 to conspiracy to launder funds knowing that the proceeds were derived from an unlawful activity.

3/28/07

Miliano

Where D waived right to appeal in plea agreement, failed to address waiver in opening brief, and, after government raised issue in response, failed to file reply brief, he forfeited right to contend that waiver should not be enforced or should not apply. No clear and gross injustice in failing to exercise discretion to forgive failure to brief waiver issue where waiver clearly set out in plea agreement, district court inquired of D whether he understood waiver and confirmed that counsel had explained it to D, and D had ?garden-variety? claims of error involving insufficient evidence where court received a variety of evidence and its factual conclusions would be reviewed for clear error.

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