Appellate Law

CA1: drugs, guns, and details

By S. COTUS

US v. Sanchez-Badillo, Nos. 05-1800, 05-2045 and 05-2047 (8/27/08) affirms a drug conspiracy case.  The big issue is whether there were multiple small conspiracies or one big conspiracy.  The first gets to play the ?totality of the evidence? and affirms.  Because, there was like some kind of ?hub? character, or whatever.  I don?t think the First would have found any other way, so I can?t really take this too seriously as a legal issue.  There are several more paragraphs below this.  However, if you were an ethical lawyer, you would have read the case yesterday.

And, of course, a gun found on the bench seat of a pickup truck sufficient to establish possession.  Somewhat more interesting is the affirmance of the conviction under  18 U.S.C. § 922(k) for possession of a gun with an obliterated serial number.  As far as I can tell, the government?s evidence was that 1) he killed someone with the gun; and then 2) he continued using it. 

There was a strange conversation during opening statements, where it appeared that, in overruling the government?s objection, the District Court said that the defendant would prove something.  The First treats this as plain error (I mean, come on, can you really object to the judge siding with you ? that seems to be a sick game of ?gotcha?).  The First says that the use of the term ?prove? was ?inadvisable? but didn?t really do much harm.

Normally, I condemn the First for giving a green light to all kinds of prosecutorial misconduct.  Typically, AUSAs say crazy things to the jury, and it simply isn?t tactically wise to object contemporaneously, so the First ends up giving them a green light.  Prosecutors knows this.  This seems to be an exception where the prosecutor was not detail-oriented, and said the word ?guns? instead of ?gun? which was correct and a curative instruction was given.  So, in this case, the government probably just didn?t have that high a level of detail-orientation and that can be forgiven.

A drug quantity argument is made at sentencing.  First, there is a Blakely argument.  That goes nowhere.  The rest of the sentencing arguments are rejected, and two guys go to jail for likely the rest of their lives.  The war on drugs was successful. 

IAC claims are denied, because the record isn?t good enough and they can be raised collaterally.

Full post as published by Appellate Law and Practice on August 28, 2008 (boomark / email).