Public Defense

Some November First Circuit Cases

By Chris Goddu

Rolfsema

In child pornography case, no prejudice from government?s untimely raising of enhancement for sadistic or masochistic conduct (USSG 2G2.4(b)(4)), more than 14 days after receipt of PSR, where D had sufficient opportunity to respond, his objections were noted in PSR, and he argued against enhancements at the hearing. Though government only sought enhancement after D sought new counsel, no evidence of vindictiveness where government did not radically change its position - it initially took no position on that enhancement, appeared only to seek it after it reviewed content of CDs in D?s possession, it objected to probation calculation on other enhancements in a manner favorable to D, and continued to do so after new counsel request. No error in applying 5-level enhancement for 600 or more images (USSG 2G2.4(b)(5)(d)), where in the past only a 2 level enhancement for more than 10 items would have applied under 2G2.4(b)(2). Other minor issues re: sufficiency of evidence.

11/17/06

Hood

No Speedy Trial violation where time during which motion for withdrawal of counsel was pending, even though motion did not delay proceedings because new counsel entered case before motion to withdraw was filed.

11/17/06

Allen

Search incident to arrest of trunk of SUV valid where trunk reachable without exiting vehicle. No plain error in prosecution closing misstatement that D was present in room during drug deal where misstatement was isolated, no evidence it was intentional, and court instructed that closing was not evidence. No plain error in statement that jury need not find with certainty that D had what he knew was cocaine base, where jurors instructed it must find D guilty beyond reasonable doubt. ?Cocaine base? under 21 USC 841(b) not limited to crack.

11/17/06

Cormier

Evidence sufficient for intent to distribute drugs, rather than possess for personal use, where there was evidence that D distributed to persons inside and outside conspiracy, gave some to use for bail money for co-conspirator, and D retained 2 pounds of marijuana for himself. Objections to personal use jury instruction reviewed for plain error where lodged only at charge conference, but not after charge and before deliberation. Instruction that joint possession must be actual, rather than constructive, to find mere personal use was not plain error where, even if erroneous, the sufficiency of evidence of intent to distribute demonstrated that instruction did not seriously impair fairness of trial. Interstate nexus testimony by ATF agent admissible as expert testimony where it was not merely restatement of conclusions made in public records, but also was based on research texts, conversations with manufacturers, and inspection of weapon. Though prosecutor, in opening and closing, repeatedly, and after warning, vouched for witnesses, saying that they were ?telling the truth,? and are ?worthy of belief,? and may have ?come perilously close? to commenting on D?s choice not to testify by talking about D?s ?own words and actions? and ?own credibility,? where court gave strong instructions on duty to disregard comments, D refused additional instructions, government did not rely on only a few witnesses for its case, comments on choice not to testify were vague and oblique, and evidence overwhelming, there was no prejudice.

11/17/06

In Re Grand Jury Proceedings

Chief Executive Officer of corporation does not have standing to intervene in proceedings to assert his corporation?s attorney-client privilege in his individual capacity as an indigent individual, himself under investigation by grand jury, with court-appointed lawyer who cannot represent corporation.

Full post as published by First Circuit Federal Defender Blog on November 20, 2006 (boomark / email).