Public Defense

First Circuit Decisions: March 1-8

By Chris Goddu

Trapp

Factors determining whether equitable tolling should apply in a habeas case are petitioner?s own diligence in pursuing habeas relief, whether extraordinary circumstance prevented petitioner from timely filing, petitioner?s diligence in pursuit of other post-conviction remedies and process already afforded in state system, prejudice to prosecution from tolling and possible retrial, whether case is of dubious merit, and whether case is capital and petitioner has been sentenced to death. Equitable tolling inapplicable where, though petitioner himself diligent, federal habeas petition not brought until almost decade after denial of certiorari on direct review, counsel not particularly diligent, special condition of petitioner?s mental disability was not cause of late filing, prejudice to state high if it had to re-litigate case about events that occurred 24 years before petition filed, petitioner was afforded considerable process in the state system, and case was not a death penalty case.

03/02/07

Misla-Aldarondo

Extortion, money laundering, and witness tampering case involving former Speaker of Puerto Rico House of Representatives. No error in denial of change of venue or continuance where prejudice could not be presumed despite extensive publicity, since court conducted extensive individualized voir dire on knowledge of case, and rate of disqualification was only 15 percent. No abuse of discretion in refusing to expand voir dire. No abuse of discretion in denying additional peremptory challenges on grounds that for-cause challenges were denied, particularly where D did not use peremptories on cause-challenged jurors. No Brady prejudice for delayed disclosure nor for denial of opportunity to cross-examine agents responsible for delay where D given opportunity to cross-examine witness on material. Any error in admitting testimony from witness without personal knowledge of what the purpose was of checks he testified to seeing was harmless where he testified to limits of his knowledge, and other evidence against D was substantial. Evidence sufficient for extortion under color of official right, even though under indictment with clerical error, count was called extortion induced by economic fear and under color of official right, and there was no evidence of economic fear, where statute only requires economic fear or color of official right and court instructed jury in disjunctive. Indictment may specify all means by which offense may be committed in conjunctive where one or more means is sufficient to support conviction. Money laundering charge sufficiently distinct from extortion charge where co-conspirator received extorted funds and D and co-conspirator took steps to conceal transactions, even if D himself did not yet receive funds. Where there was evidence D was aware that there was ongoing investigation, whether or not D knew co-conspirator was cooperating, conversations directed at influencing or preventing co-conspirator?s possible testimony were evidence of witness tampering. Evidence sufficient that it was reasonably foreseeable to D that bribe would be offered to counsel of Puerto Rican Department of Health (who had to approve transactions), supporting sentencing enhancement for more than one bribe (USSG 2C1.1(b)(1)). Where D withheld information on his finances during preparation of PSR, he did not meet his burden of showing that he would be unable to pay a fine. No Booker remand where D was sentenced pre-Booker to middle of guideline range and on appeal raised only issues raised at sentencing. Where court grants money judgment as part of forfeiture order, government need not prove D actually has forfeited proceeds in possession at time of conviction. Govt claim at forfeiture hearing that it did not intend to seek forfeiture of substitute assets does not preclude it from seeking such assets under 21 USC 853(p) and Rule 32.2 if principal forfeitable property is not available. Minor issues re: forfeiture amount.

03/08/07

Gilman

No evidence court placed too much weight on advisory guidelines in using word ?departure? rather than ?mitigation,? emphasizing policies behind stiffer guideline ranges for economic crimes, and failing to state that it treated guidelines as advisory. Though reasoning behind sentence may be inferred, where appeals court in fact is unable to discern reasoning from record, court of appeals must vacate, though not necessarily reverse. Appeals court may remand for re-sentencing if no explanation given at hearing. Explanation at hearing for sentence at middle of guideline range insufficient where no reasons given for why it was not elsewhere within range. No plain error, however, where no showing that, but for that error, reasonable probability that D?s sentence would have been more favorable, since the court elaborated on its reasons in the written judgment. Not unreasonable to use 2003 Guideline Manual involving higher penalties for financial crimes, despite the fact that all acts save one occurred before the effective date of that manual, where manual in effect at the time the last offense of conviction is completed must be consulted. D?s self-reporting of his crime to the SEC did not necessarily warrant finding extraordinary acceptance of responsibility where district court considered that argument and found it overbalanced by fact that D came forward only after SEC was investigating his other dealings. Comparison with a few other cases not sufficient to show unwarranted disparity.

Full post as published by First Circuit Federal Defender Blog on March 12, 2007 (boomark / email).