Public Defense

More Case Summaries

By Chris Goddu

Vargas

No 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. Though defendant cross-examined witness at length about qualifications, methods, memorialization, accuracy, and rigor, general objection to testimony did not preserve specific ground of sufficiency of witness' data or application of fingerprint analysis under Rule 702, and context did not make sufficiently clear what the grounds were under Rule 103(a) so as to preserve objection. Use of faxed image of fingerprint despite expert practice to use "best available image" went to weight of evidence, to be resolved by jury, and so no plain error in district court finding that witness testimony was based on sufficient facts to be admitted as expert testimony. Failure to memorialize notes, use of faxed image as a basis of comparison, "eyeballing" prints as a means of identification, and identifying only 5 points of comparison, or 1 point of comparison did not render testimony insufficient to support conclusion that it was reliably based in knowledge and discipline of fingerprint analysis, and it was a jury question whether the evidence should be credited.

12/22/06

Simo-Lopez ? Important.

Puerto Rico aggravated battery conviction not a felony crime of violence under 2L1.2(b)(1)(A)(ii), even where complaint charged D with felony aggravated battery, where Puerto Rico law divides aggravated battery into misdemeanors and felonies, court lacks discretion to impose sentence of less than 2 years for felony aggravated battery, and D received 6 months.

12/22/06

Ziskind

Booker inapplicable to judicial determination of amount of restitution. Victim cannot waive restitution. No plain error in imposing consecutive sentences that, together, exceeded maximum term for either where courts are empowered to impose either concurrent or consecutive sentences, are required to consider specific factors under 19 USC 3553(a), court here noted D?s lengthy criminal record and the range set forth in the guidelines, and D was not prejudiced where his 18 month sentence ran concurrently with a 235 month sentence. Imposition of 36 month term of supervised release was error where each count carried a maximum of one year of supervised release, and terms of supervised release must run concurrently under 18 USC 3624(e).

12/15/06

Cao

Necessity finding required for granting wiretap application adequately supported in spite of success of investigation without wiretap, including arrest of one of heads of drug conspiracy who agreed to cooperate, where her cooperation was short-lived, some sources of supply and some participants had not been identified, and some conspirators had taken precautions eluding conventional investigative means. No error in failure to grant Franks hearing where number of all confidential informants and drug transactions adequately accounted for in affidavit supporting wiretap. Any error in failure to admit taped conversations between co-conspirators saying that D was using drugs and uninterested in making money and that D was an informant was harmless where evidence was cumulative of admitted evidence that D was heavy drug user and D?s testimony that he was an informant, and evidence of D?s involvement in conspiracy was overwhelming. Refusal to instruct jury on public authority defense not error where evidence was that D contacted drug enforcement agent after arrest in case of domestic violence against head co-conspirator, offered to provide information against her, agent told D to contact him if he had any useful information, but never authorized him to engage in drug transactions. Public authority defense does not allow self-authorized crimes in hopes of being useful to authorities. Also, D?s involvement in conspiracy pre-dated discussion with agent. No error in failure to give downward adjustment as minor or minimal participant where D had more than one source of drugs, made multiple trips to secure drugs, transported substantial money, and supplied multiple customers, so was not less important than average. Evidence sufficient for obstruction of justice enhancement where D assaulted drug customer after learning that customer?s wife was cooperating, and court took assault as warning to wife to stop, and where court found D perjured himself in testifying that he used but did not sell drugs.

Full post as published by First Circuit Federal Defender Blog on January 04, 2007 (boomark / email).