Public Defense

April First Circuit Opinions

By Chris Goddu

Pierre

No 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. Evidence not too stale for reasonable suspicion to stop D for driving without a license where police officer knew that D had a suspended license for a year while officer worked in vice squad in which D?s drug dealing was discussed frequently, officer came upon D driving 5 months later, and no one in the squad, with which officer kept in touch, informed him that D had had his license restored in the meantime. Testimony concerning shooting incident irrelevant to charges remedied by court with instruction that testimony was irrelevant, charges relating to shooting had been dismissed, and jury should not think about it. In forfeiture proceeding, circumstantial evidence sufficient (by preponderance standard) that cash and jewelry derived from conspiracy where witness testified to amounts D derived from drug dealing, and D had no other job but drug dealing. Forfeiture of jewelry not erroneous even though evidence that jewelry tied to drug conspiracy was weak where jewelry was given over to defense counsel to hold once court determined its connection to offense was weak, but jewelry was thereafter forfeited as substitute assets. No Sixth amendment violation in court making drug quantity determinations. No error in organizer/leader enhancement (USSG 3B1.1(a)) where court may make determination by preponderance, and evidence sufficient based on number of people involved, drugs sold at both retail and wholesale, large quantities involved extending over a long period of time, and D was at center of operation. 432 month sentence not unreasonable compared to sentences of others in conspiracy where D not similarly situated: he commanded co-D, had worse criminal history, co-Ds cooperated, and court found D to be dangerous and unrepentant. Where 240 month sentence ran concurrently with 432 month sentence, no prejudice in any error on former sentence.

04/12/07

Owens ? Important.

n 28 USC 2255 case, it was abuse of discretion to deny evidentiary hearing on ineffective assistance of counsel claim based on counsel?s failure to advise D of right to testify where D submitted affidavit that he was not informed of right to testify, one of two attorneys filed affidavit stating that he did not remember discussing right to testify with client, and there was no affidavit from second attorney. Instruction to jury regarding D?s right not to testify did not sufficiently apprise D of right. District court abused discretion in failing to grant evidentiary hearing to determine whether courtroom was closed from public for entire day during jury selection in violation of D?s 6th A right to public trial, and whether counsel was ineffective for not objecting. If courtroom was closed without need, structural error occurred, and D need not demonstrate prejudice. Holding swearing-in ceremony for Assistant United States Attorney during trial in front of jury was error, but no prejudice where there was large quantity of evidence against D, judge gave curative instructions (though these can have limited power), jury gave discerning verdict of guilty on some counts but not on others, and length of trial. Other minor issues re: Brady, amendment of indictment, ineffective claim of failure to investigate alibi, failure to instruct that guilt requires finding that D participate in directing affairs of criminal enterprise, Apprendi claim barred by retroactivity doctrine.

04/10/07

Luisi ? Important.

Remand. Instruction relating to entrapment defense that precluded jury from considering role of third person who government agent suggested should put threatening pressure on D was error. Sufficient evidence of lack of pre-disposition to support giving entrapment instruction where D testified that he had spiritual encounter that caused him to stop dealing drugs, and that when government first attempted to induce him to deal drugs, he delayed for over two months, but acted within two days when threatening superior instructed him to deal. Government conduct not outrageous, however.

04/10/07

Materas

No error in failure to grant Franks hearing where, even if police intentionally misrepresented that D lived at location to be searched, there was sufficient grounds to search location on basis of controlled buy made there 2 days before, and other information linked D to address. Where police asked D about location of drugs before giving Miranda warnings, then gave warnings after D answered, and D waived rights, only statement about location of drugs should be suppressed, where no evidence police were intending to subvert purposes of Miranda in order to gain further evidence.

04/06/07

Henry

No abuse of discretion in failure to grant discovery requests made on eve of trial that were broad and repetitive of material already provided. Material sought largely aimed at impeaching government cooperator, D extensively impeached him, government heavily relied on tapes, and jury acquitted on the one count where, because of poor tape quality, it would have to have relied solely on cooperator?s testimony. Suppression of evidence not a remedy for use of cooperator in a sting operation during which federal agents did not follow Justice Department regulations concerning use of cooperators. Other minor issue re: rule 33 motion.

04/03/07

Garcia-Carrasquillo

Remand. Evidence of possession w/intent sufficient where D voluntarily admitted at p.c. hearing that all drugs and guns in his house were his. Evidence of aiding and abetting possession w/intent sufficient where evidence that D, an escapee, was in hiding with uncle who admitted to possession of drugs and guns, traveled with him in stolen car to house where drugs kept, stayed with uncle for hours, then attempted to flee from police, exchanging gunfire. Insufficient explanation for sentence where court gave one-sentence explanation conclusorily stating that it had considered the appropriate adjustments and the 18 USC 3553(a) factors, record of parties? arguments could not reveal what reasoning was, and guideline range spanned more than 24 months. Crack/powder sentencing disparity does not violate due process, equal protection or the Eighth Amendment prohibition against cruel and unusual punishment.

04/03/07

Tejeda

No abuse of discretion in failure to declare mistrial after jurors reported seeing spectator make throat-slitting gesture and discussed it amongst themselves after spectator was identified as someone agent saw near car carrying drugs. Juror bias not structural error nor always presumptively prejudicial. Where jurors reported they could be fair, it was unclear to whom threatening gesture was directed, court had spectator banned from courtroom and told jurors he had done so, and instructed jurors not to discuss it, no error. No abuse of discretion in failure to grant severance where no antagonism of defenses; D admitted that there was conspiracy but argued he was not a part of it and co-D argued that she participated under duress of another coconspirator. Requisite prejudice not established by arguing that there would be spillover prejudice from co-D?s contention that she was regularly beaten by a co-conspirator of D where D was alleged to be operating at a distance from co-conspirator and court instructed jury not to consider her mistreatment against D. No error in court rather than jury deciding that cocaine base in case was crack. Even though court initially indicated it would hold government to prove beyond reasonable doubt that the base was crack, no unfair surprise prejudicing D where evidence D would have offered to court was before it, and there was sufficient evidence that drugs were crack. No due process or double jeopardy violation in sentencing proceeding to determine D liable for crack where crack determination can be made by judge at sentencing, and jury had not determined whether or not D liable for crack. 240 month sentence (man min was 120) not unreasonable where court said it took into account dangerousness of crack, amount sold, likelihood of rehabilitation, and tragic nature of family circumstances, caused by D. Disparity among co-Ds not unreasonable where some cooperate and others do not.

Full post as published by First Circuit Federal Defender Blog on April 24, 2007 (boomark / email).