Public Defense

January and February 2007 First Circuit Summaries

By Chris Goddu

Trainor

Evidence sufficient that conspiracy to secure mortgages based on false representations concerning two adjacent properties constituted single rather than multiple conspiracies where evidence that D anticipated using both properties from the beginning, initiated second deal on heels of closing for first property, proposing purchase of second as method of obtaining financing for purchase of first, co-D, though perhaps unaware at first of D?s long-term plan, agreed to extend conspiracy to protect interest in first property, collaborators had overlapping participation in transactions and transactions involved similar techniques. Court instructed jury that it had to find one overarching conspiracy for guilt. Where jury found D guilty of all substantive counts, D was central actor in each enterprise, and interrelatedness of transactions made any spillover harmless, no prejudice in any case. No abuse of discretion in ordering redaction of sales brochure for properties where prices listed on brochure reflected prices at different time frame.

02/16/07

Rivera-Rivera

No plain error in admitting prior drug dealing 404(b) evidence in drug conspiracy where D himself elicited it on cross-examination. Even if there had been error, substantial rights not affected where there was overwhelming evidence that D knew object of conspiracy involved drugs as well as theft of money, including audio and videotape conversations between D and co-D. No error in admitting evidence of meeting two months after drug and money theft in which D was asked to participate in similar drug theft where evidence offered to rebut D?s theory that he lacked knowledge that conspiracy involved theft of drugs. No plain error in failure to instruct jury that evidence of meeting should not be used to prove propensity, and evidence overwhelming as to D?s knowledge that drug theft was planned.

02/16/07

Pesaturo

Though regulations implementing statute concerning liability for federal fuel excise taxes were in transition during period in question, jury could find D evaded taxes, conspired with employees to do so, and provided false statement leading to fraudulent tax return. No improper burden-shifting in summary witness calculating amount of taxable kerosene D sold from evidence of how much kerosene D purchased minus how much non-taxable kerosene D sold, and evidence that D sold taxable kerosene to buyers. Evidence sufficient that D provided false statement to accountant leading to fraudulent tax return where D?s accountant told D that his cash balance exceeded receipts, D said he used commensurate cash to purchase fuel, so cost of goods and sales should be adjusted, but D had no receipts and fuel vendor testified it did not sell fuel on cash basis. Evidence of conspiracy to evade taxes sufficient where D controlled enterprise and it was implausible that his employees were acting on their own. No plain Booker error on basis of judicial fact-finding. Where D kept no records, no error in court making reasonable estimate based on available facts on amount of tax loss.

02/07/07

Shoup

No plain error in admitting 911 tape of testifying witness as excited utterance or present sense impression where D confronted witness, witness went inside house and made call while D spoke with witness? friends, and D drove away from house within minute or two of call. No other indicia of unreliability where transcript of call accurate, in-court testimony consistent with 911 call, other facts corroborated re: type of car D driving, license plate number, general location, possession of gun with silver handle. No plain error in prosecutor?s closing that to believe D?s witnesses, jury would have to believe that a phantom put guns in the car, referring to friend of D?s brother who took 5th A rather than testify. While comments were ?extremely ill-advised,? they occurred only twice, no indication it was deliberate rather than a mistake, D?s failure to object increases likelihood effect on jury was fleeting, prosecutor did not elaborate on witness? failure to testify, court instructed that government had burden of proof, and evidence of guilt quite strong. Booker remand where D preserved issue, D was sentenced at low end of guidelines, and court said it would sentence at mandatory statutory minimum if guidelines were invalidated.

02/05/07

Rodriguez-Pacheco ? Important.

In child pornography cases, there is no requirement that government produce expert testimony that an image is of an actual child in order to meet preponderance standard at sentencing or proof beyond reasonable doubt at trial. Prior caselaw to this effect remains good law under stare decisis. Technological developments in digital imaging cannot form basis for one panel overruling another.

02/02/07

McCarty

Suppression denied where nighttime execution of warrant begun at 8:58 pm and ending at 10:35 pm was not unreasonable even though search warrant stated it could only be executed between 7 am and 9 pm. D was in custody while handcuffed, but was not interrogated where no questions were directed at him while police searched apartment, but D made unsolicited comments. After handcuffs were removed and D told he was not under arrest, was free to leave and did not need to answer any questions, he was no longer in custody. Enhancement under USSG 2K2.1(b)(3) for destructive device not double-counting on grounds that base offense level under USSG 2K2.1(a)(4)(B) and enhancement both based on possession of sawed-off shotgun, where no explicit prohibition against double-counting, nor basis for implying such prohibition since guidelines for base offense and enhancement account for different sentencing concerns. Where shotgun had barrel diameter of more than ½ inch, and Secretary of Treasury did not find sawed-off shotgun particularly suited to sporting purposes, shotgun qualified as destructive device under 26 USC 5845(f). Firearm not antique where D plead to possession of firearm as defined in 26 USC 5845(a), which excludes antique firearms, and so enhancement for destructive device proper.

01/29/07

LeMoure

Statute prohibiting corruptly endeavoring to influence any grand or petit juror, or corruptly endeavor to influence , obstruct or impede due administration of justice (18 USC 1503) encompasses witness tampering. In context of case where Ds urged witnesses to lie, instruction for 18 USC 1512 that D must knowingly corruptly persuade another with intent to influence testimony given in an official proceeding sufficient even without gloss on knowingly given by Supreme Court in Arthur Andersen ?consciousness of wrongdoing.? Where instructions identified specific proceedings, no error in failing to instruct that there needed to be connection between corrupt persuasion and a particular official proceeding. No double jeopardy where 1503 and 1512(b)(1) each have elements not required for the other offense; 1503 requires proof of intent to influence, delay or prevent testimony, 1512 requires proof of pending proceeding. No double jeopardy in convictions under 1512(b)(1) and 1621; whereas 1622 requires proof of actual perjury, 1512 does not, where 1512(b)(1) requires proof of nexus with official proceeding, 1622 does not. No plain error in court failure sua sponte to caution jury that advising witness that he can take Fifth Amendment does not amount to witness tampering. Guideline for obstructing investigation of criminal offense, which instructs base offense level should be that of accessory after the fact for underlying crime if greater than for obstruction itself (USSG 2J1.2©)(1)), refers to what grand jury was investigating, not what indictment was returned or what crime occurred.

01/19/07

Josselyn

In 2254 petition from MA conviction, claims not exhausted where not presented in application for leave to obtain further appellate review (ALOFAR) with SJC. No error in dismissing petition with exhausted and unexhausted claims rather than staying petition to permit exhaustion of unexhausted claims where mistaken belief that presenting claims in ALOFAR was not necessary for exhaustion did not constitute good cause.

01/11/07

Segarra-Rivera

Sixth Amendment entitled D to new counsel at plea withdrawal hearing where D had alleged that counsel manipulated him into pleading and withheld exculpatory evidence from him because counsel had failed to prepare for trial, and counsel at withdrawal hearing argued against withdrawal, creating conflict of interest.

01/11/07

Robinson

No prosecutorial misconduct in referring to D?s drug trafficking where D did not plead to the drug trafficking crimes until 3rd day in a trial involving both drug and gun charges. Questions put to D about drug dealing after he plead to charges were not prejudicial where jury had already heard a great deal about his drug activity, including D?s admission that it was not unusual for him to deal drugs. No improper motivation for questions where gov?t attempting to establish need for guns. While it was error to ask D if he believed gov?t witnesses were lying, no prejudice where court sustained objection to one question, and no plain error to other where all question did was highlight discrepancy between D?s testimony and gov?t agent?s. No improper vouching in telling jury it should acquit if it believed the officers of the United States got on the stand with all their years of experience and in the face of their oath lied. No plain error in closing that talked about D?s prior criminal history where it was only small portion of summation. No plain error, though close to simple error, in government statement that anything could have happened if real drug-dealers, rather than gov?t agents, had been involved in drug deal where guns were present, where court instructed jury that closing arguments are not evidence. Errors did not cumulatively deprive D of fair trial. Sufficient evidence of constructive possession of firearm even though D did not own guns or car in which they were found where D was friends with car owner?s sister, who left keys where D and coD had easy access, D was part of group who was to drive car on trip, and witness testified that D said in prison that he could have ?gone boom, boom? when everyone came from everywhere. Evidence was sufficient that guns were in furtherance of drug trafficking where guns were hidden in car 3 to 6 inches inside engine compartment, loaded and accessible during drug deal. District court?s statement that it didn?t have a lot of discretion at sentencing hearing did not evidence error under Booker where court clearly said guidelines were advisory, and statement appeared to refer to need to give reason for going below guidelines, for which it did not see evidence.

01/10/07

Rodriguez-Rivera

No Brady violation in failure to turn over files of co-conspirators where no showing of any prejudice or any exculpatory argument aside from assertion that three years elapsed between indictment of D and his co-conspirators, suggesting D?s innocence. Failure to provide Giglio material, if any existed, on two witnesses D gave hush money to but were not charged did not prejudice D where D effectively cross-examined them. No due process violations of judicial bias in interruptions of defense counsel to clarify questions from counsel or answers from witness. No bias in expressions of impatience, annoyance or ire mostly expressed outside jury?s presence. Expressions in the jury?s presence limited to instances in which counsel ignored court?s instructions, and court gave instruction that jury should draw no inference against side court admonishes. No ex post facto violation in offense committed before Booker being sentenced post-Booker under advisory guidelines. Likewise, no due process violation, where cross-reference to murder in robbery guideline applicable under guideline pre-Booker. 480 month sentence for two robbery conspiracy convictions not unreasonable where murders occurred in both robberies, and D gave gun to co-conspirators each time.

Full post as published by First Circuit Federal Defender Blog on February 27, 2007 (boomark / email).