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Criminal Law

Puerto Rico Association of Criminal Defense Lawyers

By Tom Lincoln

Post Frequency: 1.2/day

Last Entry: January 21, 2011 at 18:55:44

Rehearing Requested in US v. Wilkerson on Federal State Sentencing Disparity Issue

Posted on July 29, 2005
We had previously discussed in this post the First Circuit's opinion in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) which appeared to endorse the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world...

Sentencing Guidelines Seminar

Posted on July 14, 2005
The U.S. District Court for the District of Puerto Rico will be sponsoring a Sentencing Guidelines seminar on August 5, 2005 from 9:00 a.m. to 4:00 p.m. If you want to make sure your seat is reserved, send an e-mail to Carmen Serrano with your full name and District Court Bar Number as soon as possible (no later than July 26th 29th),* since there are space limitations...

Peter Goldberger on Dodd and Filing 2255 with Blakely/Booker Claims

Posted on June 21, 2005
On Monday the Supreme Court decided Dodd v. United States, No. 04-5286 (June 20, 2005) holding that the 1 year limitations period under 2255(3) "begins to run on the date on which this Court 'initially recognized' the right asserted in an applicant's motion, not the date on which that right was made retroactive" Peter Godlberger, through a post at BOPWatch as well as his comment at Sentencing Law and Policy here, has alerted to the importance of Dodd to persons whose sentences became final before Blakely v...

Another Lesson Plan from Judge Gertner

Posted on June 16, 2005
In another of her impressive opinions on sentencing issues, Judge Gertner has issued a Sentencing Memorandum in United States v. Malouf, No. 03-cr-10298-NG (D.Mass. June 14, 2005). The first few paragraphs read as follows: This case is about the interpretation of an important federal drug distribution statute, 21 U...

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Getting an Evidentiary Hearing at Sentencing

Posted on June 14, 2005
Another Booker remand from the First Circuit in United States v. Cabrera, No. 03-1890 (1st Cir. June 14, 2005) (not for publication). However, I find more interesting the panel's comments as to the separate claim raised by appellant that the Court had abused its discretion in refusing to hold an evidentiary hearing at the time of sentencing regarding the issue of drug quantity...

Justice Breyer: Get rid of Peremptory Challenges

Posted on June 14, 2005
In Miller-El v. Dretke, 545 U.S. --, No. 03?9659 (June 13, 2005) the Court grants habeas relief to petitioner on his Batson claim. Justice Souter wrote the Court's opinion. Justice Breyer wrote a concurrence in which he posits that peremptory challenges should be done away with altogether...

Disparity Between State and Federal Sentences for Same Conduct

Posted on June 10, 2005
In a Booker remand in United States v. Wilkerson, No. 02-1729 (1st Cir. June 9, 2005) the panel seems to be endorsing the idea that a district court may take into account the disparity between federal and state sentences for the same conduct in arriving at a correct sentence in the post-Booker world...

Retirements at Supreme Court and the Impact on Almendarez-Torres and Harris

Posted on June 08, 2005
President Bush has often stated that he likes Justices in the mold of Scalia and Thomas. In an interesting post at Sentencing Law and Policy here, Professor Doug Berman gives us his prognosis for Almendarez-Torres and Harris if Justices appointed to replace either Chief Justice Rehnquist or Justice O'Connor were to vote like Scalia and Thomas.

First Circuit Accepting Applications for CJA Panel

Posted on June 08, 2005
The First Circuit Court of Appeals is currently accepting applications to serve on the court's Criminal Justice Act ("CJA") panel. Application packages must be received no later than June 13, 2005 at 5:00 p.m. For your convenience, here is the Announcement and the Application Form taken from the First Circuit's site.

New Site: Law of Criminal Defense

Posted on June 07, 2005
I invite you all to check out John Wesley Hall, Jr.'s Law of Criminal Defense. This website is a research aid to Professional Responsibility in Criminal Defense Practice which will be published by Thomson-West approximately June 20, 2005. It is the third edition of Professional Responsibility of the Criminal Defense Lawyer (2d ed...

Blakely, Booker & Supervised Release Revocation

Posted on June 04, 2005
In United States v. Work, No. 04-2172 (1st Cir. June 3, 2005) defendant-appellant argued "that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time...

REMINDER: ACLU-PR's Capital Punishment Panel Conference Tonight at 7:00 p.m.

Posted on May 24, 2005
This is to remind all of ACLU of Puerto Rico invitation to attend their Capital Punishment Panel Conference tonight --May 24th-- at 7:00 p.m. at the Inter American University, School of Law - Theater. The conference participants will be: Alvin J. Bronstein - Director Emeritus, ACLU Prison Reform Project; Board member of Penal Reform International (London); World Organization Against Torture (Geneva); Jeff Gamso - Legal Director, ACLU of Ohio; Capital Punishment Defense Bar; Juan Mel�ndez - Puerto Rican sentenced to the Death Penalty, 17 years on Death Row The moderator will be Juan Ram�n Acevedo, Esq...

Texas House Passes Life Without Parole

Posted on May 24, 2005
According to Injustice Anywhere the Texas House has finally passed its version of life without parole which now must be reconciled with the Senate's version and then sent to the Governor. See also Life without parole approved by House - Opponents say proposal would create more dangerous prisons, by Mike Ward, American-Statesman Staff, Tuesday, May 24, 2005.

Update: Texas Life Without Parole Option Still Not a Reality in Capital Cases

Posted on May 23, 2005
We thought that Texas was finally coming around to passing legislation that would have allowed juries the choice in capital cases of death and life without parole (a third option, life with parole, had been eliminated in a compromise bill). While the Texas Senate passed the compromise bill, it now appears to be stuck in the Texas House, despite the reportedly majority support for the bill...

Sixth Amendment Violated --and it's not Booker related

Posted on May 19, 2005
Fellow PRACDL member Linda Backiel just won a new trial for her client in US v. Vega Molina, No. 03-1625 (1st Cir. May 19, 2005). We'll develop this a bit more later, but just wanted you all to have a bite at it first. I recall the trial of that case before Judge Dom�nguez, which was widely covered in the press and was hotly fought...

The 100 to 1 Powder Cocaine to Crack Disparity Post-Booker

Posted on May 19, 2005
In dealing with the powder cocaine to crack 100-1 disparity post-Booker, U.S. District Judge Ronnie Greer gives us a nicely crafted Memorandum Opinion and Order regarding sentencing in United States v. Clay, Cr. No. 03-73 (E.D.Tenn. May 6, 2005). Our thanks to Carmen Hernandez for posting it on the BOPWatch group...

First Circuit Reverses Judge Gertner's Order to Empanel Two Juries in Capital Case (One "Non-Death-Qualified" for Guilt Phase, Another "Death Qualified" for Penalty Phase)

Posted on May 12, 2005
Today in US v. Green, No. 05-1014 (1st Cir. May 12, 2005) the First Circuit reversed Judge Gertner's decision in US v. Green, Criminal No. 02-10301-NG (D.Mass) (see Memorandum and Order Re: Bifurcation of November 3, 2004 and Additional Findings Re: Bifurcation of December 29, 2004) to empanel 2 juries in a capital case, one non-death-qualified to hear the guilt phase, and another death-qualified to hear the penalty phase if necessary...

When the Not-So-Smart Crowd Governs ...

Posted on May 09, 2005
Last year we had this bill [H.R. 4547] in Congress - in the midst of the Blakely decision -- that would have added more mandatory minimum sentences. I wrote about it at Macondo Law in this post: Drug Points to Start Carding Customers? More Mandatory Minimums? Even before Blakely was decided, Rep...

Is this why we cannot have cellphones inside the courthouse?

Posted on May 07, 2005
Assistant U.S. Attorneys are allowed to have their cellphones inside the courtroom (under a court-created "law-enforcement duties" exception to the general ban), and I can only imagine that agents are allowed to do so as well. Up until now I always thought that it had something to do with one of two matters: Court security Judges either not wanting to hear a phone ring in the middle of a proceeding or in the lobby, or simply not wanting someone calling a radio station to have the court proceedings broadcast over the airwaves...

The 9th Reverses on Prosecutorial Misconduct

Posted on May 06, 2005
Today we have a good case for defendants from the 9th Circuit. Yes, I know that you are reluctant to cite those 9th Circuit cases to the judges in our district, but save this one anyway. In United States v. Weatherspoon, No. 03-10551 (9th Cir. May 6, 2005) the 9th Circuit reverses a conviction due to prosecutorial vouching and urging the jury to cure society's ill by convicting defendant of a felon in possession charge...

The 7th Addresses Pros and Cons of Full v. Limited Post-Booker Remands (Sort of)

Posted on May 05, 2005
From the 7th Circuit we get United States v. Goldberg, No. 03-3955 (7th Cir. May 5, 2005) in which defendant had been sentenced pre-Booker and was arguing on appeal a misapplication of the sentencing guidelines by the district court in imposing a vulnerable victim enhancement...

Pro Bono Redefined

Posted on May 03, 2005
See Pro Bono, Pro Profit? by Anthony Lin at law.com and ask yourself whether redefining pro bono in these terms is such a good idea. I have mixed feelings about it.

ACLU-PR: Capital Punishment Panel Conference

Posted on May 03, 2005
The ACLU of Puerto Rico will be holding a Capital Punishment Panel Conference on May 24, 2005 at 7:00 p.m. at the Inter American University, School of Law - Theater, and has sent out an invitation for all PRACDL members to attend. The conference participants will be: Alvin J...

Puerto Rico Capital Case Results

Posted on May 03, 2005
Yesterday the jury returned its verdict as to the second defendant facing death in the first capital case to be tried to a penalty phase in Puerto Rico's recent history with the federal death penalty, and the Court then announced the penalty phase verdicts as to both defendants...

Acquitted Conduct post-Booker and Continued Vitality of U.S. v. Watts

Posted on April 30, 2005
Professor Berman had reported at Sentencing Law and Policy here on Judge Gertner's decision in US v. Pimental, No. 99-10310-NG (D. Mass. April 15, 2005). Judge Gertner has now issued an Amended Sentencing Memorandum in US v. Pimental, No. 99-10310-NG (D...

Second Defendant's Case Submitted to Jury in Penalty Phase of Capital Case in Puerto Rico

Posted on April 30, 2005
We reported earlier (see here) on how the penalty phase in a federal capital case --the first one to reach the penalty phase in Puerto Rico's recent history-- had been separated, so that the penalty phase evidence and jury deliberations against one defendant was carried out before any penalty phase evidence was presented as to the other defendant...

The ABA on H.R. 1528

Posted on April 23, 2005
Here is the Position Paper of the American Bar Association Regarding Section 12 of HR 1528, which minces no words in tearing down the misleading statements put out by Representative Sensenbrenner's office. Not only does it challenge the misleading nature of the statements, but it also points out that the result will be much litigation, and a likely finding down the road that this Booker-fix violates Booker...

Links to H.R. 1528 (the Booker-Fix) Materials

Posted on April 22, 2005
H.R. 1528, a drug sentencing bill entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005" whose Section 12 has been called a Booker-fix, was considered in the House Judiciary Committee without anyone being called to testify as to the same...

Sealed Penalty Phase Verdict Returned as to One of Two Defendants in Capital Case

Posted on April 22, 2005
There's an ongoing death penalty case being tried in the District of Puerto Rico before Judge Juan M. P�rez-Gim�nez. Only the two defendants certified for the death penalty are on trial in this round, with the non-death certified defendants to be tried at a later date...

I Should Have Paid for that Computer

Posted on April 21, 2005
If you are into downloading child pornography, don't use a computer you purchased with someone else's credit card. In United States v. Caymen, No. 03-30365 (9th Cir. April 21, 2005), the police were notified that Caymen had purchased a computer using someone else's credit card number...

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