Public Defense

Under Construction

Posted on November 11, 2008

More October and November First Circuit Opinions

Posted on November 19, 2007
11/15/07 ArangoNo error in failure to grant third point for acceptance of responsibility (USSG 3E1.1(b)(2)) where one D notified govt of intent to plead on morning of trial, and other D notified on Wed before Mon scheduled start. Where case complex and govt had already filed trial brief, proposed voir dire, motion in limine, list of exhibits and witnesses, and proposed jury instructions, had spent significant time translating and transcribing phone conversations and preparing witnesses and generated voice exemplars, no error in ruling that pleas were ?untimely...

Important Recent First Circuit Case

Posted on November 01, 2007
10/30/07 MiloTime served (18 days) sentence unreasonable in 6000k marijuana cooperator case with 10 year man min and government recommendation of 75 months. No error in affording some weight to large forfeiture order in determining overall sentence...

August and September First Circuit Case Summaries

Posted on October 04, 2007
10/01/07 Tom ? Important.Sentence of 36 months? probation in insider trading case (15 USC 78j(b) and 78ff(a)) unreasonable where guideline range was 37-46 months. Concern with disparity among Ds is primarily a national concern, not concern about Ds in a particular case or court...

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07/31/07 PortallaEvidence sufficient

Posted on August 03, 2007
07/31/07 PortallaEvidence sufficient that D intended to agree to drug conspiracy or advance its goals where there was evidence that D gave co-conspirators false employment credentials to enable them to purchase expensive homes and cars, facilitating drug enterprise, and volunteered to provide cell phones under fake names, advising cooperator to discard them after a month, and acquire a new one after under a fake name, and telling him that he had done this for others...

First Circuit Summaries - June 2007

Posted on June 25, 2007
06/20/07ZiskindThough D agreed to stipulation that co-D pleaded to conspiracy, where throughout he expressed reservation that admission of plea presented possible Bruton problem, no intentional relinquishment of appellate right. Where D did not raise Crawford objection to admissibility of plea until jury asked to see stipulation, D forfeited that argument...

More May First Circuit Case Summaries

Posted on June 04, 2007
05/31/07 PachecoImposition of upward departure on grounds of significant physical injury resulting from offense conduct (USSG 5K2.2) not error where, even though D?s last shipment of ketamine to victim preceded overdose by five weeks, empty envelopes and bottles from D were found at scene of overdose, and unopened package of ketamine from D found in victim?s mailbox...

Late April/Early May First Circuit Summaries

Posted on May 15, 2007
05/09/07BellWhere no indication apparent on face of record that juvenile court had consolidated prior crimes for sentencing, no clear error in not finding them consolidated under USSG 4A1.2(a)(2). One cluster of crimes consisted of 3 crimes occurring over a span of 14 days for which D was arrested at same time, each offense assigned a separate docket number, resolved at unified dispositional hearing, with separate sentences imposed for each, to run concurrently...

April First Circuit Opinions

Posted on April 24, 2007
04/18/07 PierreNo constructive amendment of indictment in presenting evidence of conspiracy with several participants where government theory was that D conspired with many in drug possession and distribution, indictment did not limit co-conspirators, and evidence did not necessarily show two separate conspiracies...

Wrapping up March First Circuit decisions

Posted on April 04, 2007
3/27/07 Nieves-Castano ? Important. In unlawful possession of a machine gun case (18 USC 922(o)), mens rea evidence insufficient where, though D admitted possession of rifle and knowledge that it was an AK-47, statute requires knowledge that weapon is a machine gun...

A few March 2007 decisions

Posted on March 29, 2007
03/22/07 BravoUnder Maritime Drug Law Enforcement Act (MDLEA 46 USC app 1903©), a vessel aboard which the person in charge claims registry in a particular nation, and that nation does not affirmatively and unequivocally assert that vessel is of that nation, is a vessel without nationality and is subject to United States jurisdiction...

First Circuit Decisions: March 1-8

Posted on March 12, 2007
03/01/07 TrappFactors determining whether equitable tolling should apply in a habeas case are petitioner?s own diligence in pursuing habeas relief, whether extraordinary circumstance prevented petitioner from timely filing, petitioner?s diligence in pursuit of other post-conviction remedies and process already afforded in state system, prejudice to prosecution from tolling and possible retrial, whether case is of dubious merit, and whether case is capital and petitioner has been sentenced to death...

Another February Case

Posted on February 28, 2007
2/26/07 MillerConnecticut burglary counted as predicate violent felony under the Armed Career Criminal statute (18 USC 924(e)(1)) where, though statute is non-generic, D?s state plea colloquy transcript indicated that judge characterized offense as ?break-in at Trader Jack?s? and said that D should stay out of Trader Jack?s and other stores he was not charged with...

January and February 2007 First Circuit Summaries

Posted on February 27, 2007
02/16/07 TrainorEvidence sufficient that conspiracy to secure mortgages based on false representations concerning two adjacent properties constituted single rather than multiple conspiracies where evidence that D anticipated using both properties from the beginning, initiated second deal on heels of closing for first property, proposing purchase of second as method of obtaining financing for purchase of first, co-D, though perhaps unaware at first of D?s long-term plan, agreed to extend conspiracy to protect interest in first property, collaborators had overlapping participation in transactions and transactions involved similar techniques...

FREE SEMINAR ON MENTAL HEALTH ISSUES IN FEDERAL COURT

Posted on January 24, 2007
The Criminal Justice Act Board and the Federal DefenderOffice will present a free seminar on Mental Health Issues in FederalCourt on Thursday, January 25, 2007 from 4 to 6 p.m. in the JuryAssembly Room on the Second Floor of the Moakley U.S. Courthouse inBoston...

Issues In Need Of Cert

Posted on January 04, 2007
In a recent post, Steve Sady over at the 9th Circuit Federal Defender blog puts forth a list of issues he feels are crying out for Supreme Court review. It is an interesting read.

More Case Summaries

Posted on January 04, 2007
11/22/06 VargasNo abuse of discretion in determination that witness was fingerprint expert under F.R.E. 702 where he worked in field of fingerprint analysis for over 20 years, took courses in fingerprint comparison, was certified as examiner and qualified as expert in over 100 cases, though he was unable to answer questions about the significance of recurring fingerprint characteristics...

Some November and December Case Summaries

Posted on December 18, 2006
12/12/06 Vazquez-RiveraOn re-sentencing after Booker remand, evidence sufficient that D responsible for at least 5K cocaine where witnesses testified to approximate amounts and times, because use of ?reasoned estimates? are appropriate. Where D managed drug point, and co-conspirators testified about selling, giving and carrying guns to store at drug point and for protection, evidence sufficient that it was foreseeable to D that firearms would be used to further drug conspiracy...

Justices Breyer and Scalia Discuss Constitutional Interpretation and the role of the Supreme Court

Posted on December 07, 2006
Here is a link to a video of a discussion between Justices Breyer and Scalia about the role of the Supreme Court, Constitutional Interpretation and their most recent books - Active Liberty and A Matter of Interpretation. It is always intersting to see members of the court opining on the Constitution.

Supreme Court Case Load

Posted on December 07, 2006
Here is a link to an interesting article discussing the marked decline in the caseload for the Supreme Court. As most of us know and as the article surmises, part of the reason is that:The federal government has been losing fewer cases in the lower courts and so has less reason to appeal...

Adam Walsh Memoranda

Posted on November 29, 2006
Here is a link to our community postings page where you will find two comprehensive memos by Amy Barron-Evans and Sarah Noonan on the Adam Walsh Act:Adam Walsh Act-Part IAdam Walsh Act-Part II (Sex Offender Registry and Notification Act)

Some November First Circuit Cases

Posted on November 20, 2006
11/17/06 RolfsemaIn child pornography case, no prejudice from government?s untimely raising of enhancement for sadistic or masochistic conduct (USSG 2G2.4(b)(4)), more than 14 days after receipt of PSR, where D had sufficient opportunity to respond, his objections were noted in PSR, and he argued against enhancements at the hearing...

Some interesting reading on the drug wars and incarceration statistics

Posted on November 17, 2006
Milton Friedman died yesterday. In April 1990 he wrote an open letter to then drug Czar William Bennett. It is short and to the point.Berman's blog had another interesting link to a Fact Sheet concerning incarceration statistics gathered by the National Council on Crime and Delinquency...

Is An Attempted Burglary Always A Violent Felony Under The ACCA?

Posted on November 14, 2006
The Supreme Court heard argument on November 7, 2006 in US v. James, a Seventh Circuit case that deals, in part, with the "otherwise" clause of the Armed Career Criminal Act.You may want to update yourself on this case if you have a sentencing coming up which involves a predicate offense that may or may not make your client an Armed Career Criminal...

Supreme Court Accepts Two Cases For Booker Reasonableness Review

Posted on November 13, 2006
The Supreme Court granted certiorari in the following two cases:Rita v. US, No. 06-5754 (presumption of reasonableness for within guideline sentence; from 4th Cir.):1) Was the district court's choice of within-Guidelines sentence reasonable?2) In making that determination, is it consistent with United States v...

Receiving First Circuit Opinions Via E-Mail

Posted on November 09, 2006
For all of our CJA panelists and other defense attorneys, I thought I would post a reminder of how you can receive First Circuit opinions via e-mail the day they are issued.If you are not signed up for this service, you should. It is very easy: surf to the First Circuit website at this link, click on the Opinions tab, then click on the subsribe link and type in your e-mail address in the box provided...