Appellate Law

CA1: First bends rather far on autopsy records and Crawford

By S. COTUS

US v. De La Cruz, Nos. 06-1659, 07-2515.  This is a drug case.  It has lots of neat facts about how drugs are distributed, and a description of an overdose of a poor person that was apparently the result of heroine provided to him by a person of the less affluent classes.  This case has a lot of issues and you should read it.  (Obviously, lawyers should read every case.)

But, there are some interesting criminal procedure issues.  Namely, the government filed a superceding indictment, and the defendant countered with an emergency motion to go to trial and ?argued that he should be permitted to go to trial on the first, rather than the second, superseding indictment because he was then ready to go to trial on the first superseding indictment and because he would be ?severely prejudiced? by the government's delay in adding the ? expansive charges? contained in the second superseding indictment.?  At this point he had been in jail four years, but the First faults him for not asking that the second count be dismissed on Speedy Trial Grounds.  The Court takes particular glee in this.  He was convicted both counts in the superceding indictment.  He was convicted.  The court orally granted a request for argument on a new trial, but didn?t set a date or time for such a hearing.  Then he was sentenced to twenty years.  The First issued a remand for the limited purpose of hearing the motion for a new trial, which was denied.  Then, it went back to the First.  Counsel also filed a separate appeal from the denial of the motion for a new trial, anyway, but said that he would rely on the briefs in the First appeal.  So, the First sets out to knock out the defendant?s arguments.

• First, because his protest about the late superceding indictment was couched in terms of a motion to have a trial, but he didn?t mention the Speedy Trial Act, the First says gleefully says that issue is waived. 
• Second, a government chemist testified at trial ?about the purity of the heroin found in [a dead guy?s house] home the night his body was discovered.?  Everyone agrees that the defendant wasn?t informed of this.  There was some drama in the court, and the District Court judge, while denying all defense motions, seemed to indicate that he should get some kind of continuance, because to ?strike? the testimony, would call the jury?s attention to it.  The First says that the 1:20 recess is enough time to consult a chemist, whatever the case, the defendant doesn?t demonstrate that he was prejudiced by this.

I put some more below the fold.  Where it is moist and chewy.  Like Chewbaka.

• Third, the defendant raised an argument under Crawford v. Washington, 541 U.S. 36 (2004), that the medial examiner should not have been permitted to rely on reports that he didn?t prepare.  The First responds by mocking the defendant?s lawyer?s performance, saying it is perfunctory.  Then, they start talking crazy.  Somehow autopsies performed by chief medial examiners are not routinely done and therefore ?is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy.?  Wow!  An autopsy is a business record! The First cites a New York State trial court opinion for this proposition!  (And it isn?t a very good opinion, either.)  Talk about reaching!  Do they really need to bend that far to put this guy in jail?   
• Fourth, the District Court didn?t allow for a new trial on the basis of an apparent recantation by a cooperating witness.  The District Court mocked the letter and called in ?rambling? and stuff.  So, the First says that it wouldn?t result in a different result with a trial.   Besides, the First says, the government?s case was really strong.
• Fifth, as to the ?foreseeability? of death issue, the First says that jury instructions don?t have to include a foreseeability argument.  Relying on United States v. González-Vélez, 466 F.3d 27, 35-36 (1st Cir. 2006) (our coverage here), the First says  21 U.S.C. § 841(b)(1)(A) (?if death or serious bodily injury results from the use of such substance.") doesn?t include a foreseeability argument.
• Sixth, regarding the argument that the jury should have been instructed on a ?multiple conspiracy theory? (in that another guy headed a separate conspiracy).  The First says he didn?t establish prejudice.
• Seventh, even though the First spends several sentences practically mocking counsel, the First deviates from its usual practice of saying that ineffective assistance claims should be raised collaterally, and concludes that he was effective assisted.      

This opinion bends quite a bit to put someone in jail.  I also don?t see why it needs to bash the defendant?s lawyer.  Whatever.

Full post as published by Appellate Law and Practice on February 01, 2008 (boomark / email).