Appellate Law

CA1: First gets preachy over botched motion

By S. COTUS

US v. Pomales-Lebron, No. 06-1620.  On a denied motion for judgment of acquittal of Fed. R. Crim. P. 29, based on 21 U.S.C. § 846 (conspiracy to distribute cocaine base), the First says that the government did a good enough job, adding that the evidence might have been ?overwhelming.? 

The First also gives the government a pass when it allowed disclosed the planned testimony of a paid ?confidential source? that used marijuana after the trial began (and without putting it in the indictment.)  The District Court obliged.  The First says that there was no prejudice, and that the fact that it wasn?t included in the indictment doesn?t really matter, because it wasn?t a ?prejudicial variance.?  The First also notes that the defendant failed to ask for a continuance or a resource and there was lots of evidence.  Read on for the preachy part.

Regarding a motion for a new trial, the First says that such a motion wasn?t properly presented to the District Court.  But, then the First starts lambasting ?both parties? lawyers.  I never really saw the point in doing this.  The First says:

Defense counsel failed to properly file a Rule 33 motion (new trial) on behalf of his client, but nonetheless sought appeal on that ground. This ? at best ? amounted to gross ineptitude; at worst, it constituted an intentional effort to mislead this Court. We do not, however, pretend to know which is correct.

The First then rejects the idea that ?justice demands? that the Court of Appeals analyze this.  But, the First then lambastes the government for not reviewing the record, but responding to the argument on the merits.  Finally, the court breaks out some catchphrases and citations to the Model Rules of Professional Conduct.  Whatever.  Maybe counsel made a mistake and tried to correct it.  Maybe the government figured it would respond in an abundance of caution.  The First is really being too preachy.  So, it concludes it lacks jurisdiction, and another life is sent to jail.

Full post as published by Appellate Law and Practice on January 17, 2008 (boomark / email).