Appellate Law

CA1: drug conspiracy colloquy fun

By S. COTUS

US v. Pimentel, No. 07-1512 (8/21/08)holds on plain error review that a plea colloquy was okay.  At the change of plea hearing, ?The district court d8etermined that Pimentel's claims of exculpatory evidence lacked credibility because he had previously admitted to the conspiracy and admitted that there was a gun in the vehicle when he went with his co-defendant to pick up the drugs.?  The First then explains how the Rule 11 proceedings were okay, and notes that the District Court didn't have to inform the defendant of the overt acts of drug conspiracy offense, because, it seems that overt acts are not elements of the [drug] conspiracies. 

The government concedes that the defendant wasn't properly advised of the maximum statutory penalty.  But, the First says that this is harmless because it didn't change the sentence he ended up getting. 

Substantively, the First notes that the DC Circuit has held that 21 U.S.C. § 841(a)(1) doesn't require that a defendant be charged with a specific amount of drugs.  This defendant was not.  However, the First says it isn't going t decide whether this statute requires a specific quantity, because it wasn't raised below, and such an error is not a jurisdictional defect.

Full post as published by Appellate Law and Practice on August 22, 2008 (boomark / email).