Appellate Law

CA1: Allen charges, Kimbrough remands, and interstate travel to meet minors

By S. COTUS

US v. Vanvliet, No. 07-1578, is an appeal of a conviction for under 18 U.S.C. § 2423(b) for ?interstate travel with the intent to engage in an illicit sexual act.?  I swear, these pervs are totally not romantic.  Meeting a girl at a Dunkin Donuts?  The jury split.  They got an Allen charge.  Then they convicted. 

But, there is a bigger issue about an alleged ?consent? search.  There seems to be a pretty good argument that a search of the laptop was the produced of a coerced (or tricked) search.  But, the defendant is not rich.  So, the First says that he waived his arguments by not specifically saying why the consent (which might have been obtained by trickery) wasn?t raised below.

There were some objections to the Allen charge, but the First seems cool with it.  It is a pretty extensive, yet fact-specific analysis. 

A prosecutorial misconduct charge, as usual, goes nowhere.  It seems the government tried to shade the evidence to meet its theory of the case, as they should.  But the First says that there isn?t any evidence to show that anyone was deliberately concealing anything.  Finally, the closing arguments to the jury were okay, because they were acceptable inferences.

He gets a Kimbrough remand, however, because ?The government correctly points out that Vanvliet's sentence must be vacated in light of Kimbrough, which held that district courts legitimately may cite their own disagreements with Guidelines policy as justification for imposing a below-Guidelines sentence.?

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