Appellate Law

CA1: Alien smuggling case has something for everyone

By S. COTUS

USA v. Hilario-Hilario et al, Nos. No. 06-1007, 06-1009, 06-1010, 06-1011, 06-1013 (6/20/08).  This is an alien smuggling case.  The tone of the opinion seems to indicate that at least one judge on the First thinks that the government did a sloppy job of prosecuting it.  But, this is probably more lawyer-to-lawyer sniping than it is an indication of their views about these cases.  I find it somewhat ironic that the government put a lot of effort into proving that the vessel wasn?t that seaworthy, when, if it had sank, the underlying reason for prosecuting these people (i.e. bringing illegal aliens into the US) would have vanished.  Strangely, the Victims Rights Industry doesn?t seem to care too much about the ?victims.?  There is lots here.  Sentencing , photo lineups, etc.

Getting to the actual issues, the First holds that:

To me, the most interesting issue is the admission of testimony of a Coat Guard Officer who testified about what sort of safety equipment should have been there.  He was not specified as an officer under to  Fed. R. Crim. P. 16(a)(1)(G) in advance of trial.  The First scrambles around to save this, and figures that it doesn?t matter really matter because 1) everyone knew that the safety equipment wasn?t there; and 2) there wasn?t any prejudice. 

Secondly, one defendant was convicted, but it wasn?t clear whether he was convicted of smuggling or aiding and abetting smuggling under 8 U.S.C. § 1324(a)(1)(A)(i) (2000).  This makes a five year difference in the sentence.  It wasn?t preserved below.  The First says that this is plain error, and remands for sentencing (with five-year maximum).  Strangely, he may have ?bandished? a knife.  Under the guidelines this would normally matter (but not if the statutory maximum is five years), however, the First determines that the other co-defendants can have their sentences enhanced because of the knife.

Secondly, the First actually talks about the ?special skill? enhancement.  U.S.S.G. § 3B1.3, cmt. n.3.  It wisely concludes that piloting a boat is a special skill but merely being a construction worker is not.

Third, it wasn?t an error to ?enjoin? the government from speaking to the press about this case.  But, the First says that all the government gave the press was a trial date.

A pre-trial ?photo lineup? in which the defendants appeared last wasn?t that bad.  Assuming that it was ?suggestive,? wasn?t that bad because ?the witnesses identifying the defendants had traveled with them for thirty hours at a close distance and without any attempt by any of the defendants to conceal their appearances during the trip? and the ?witnesses? memories were still fresh.

A 6th Amendment/Miranda issue is dealt with by showing how the District Court found a waiver to be knowing and voluntary. 

Preventing a defending from cross-examining the government about a defendant?s own admissions that implicated other defendants and redactions that appeared to increase one defendant?s role is deemed not to be an abuse of discretion.

Full post as published by Appellate Law and Practice on June 23, 2008 (boomark / email).