Public Defense

More May First Circuit Case Summaries

By Chris Goddu

Pacheco

Imposition 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. Where victim ingested both ketamine and heroin, and D argued at sentencing only that medical records did not demonstrate that cause of injury was ketamine rather than heroin, D?s argument that government was obliged to offer expert testimony was forfeited. In construing 5K2.2, construals of 5K2.1 (authorizing upward departure if death resulted from offense conduct) are persuasive. Where evidence sufficient to ground inference that ketamine was either sole or contributory cause of overdose, no clear error in imposing upward departure. Victim?s actions in mixing ketamine and heroin, and some evidence that he had thought about suicide before his overdose, did not break causal chain between D?s acts and the overdose, since neither foreseeability nor but-for causation is required for upward departure under 5K2.2.

05/31/07

Rivera-Rodriguez

Court?s remark that it sentenced D to high end of guideline range on basis of testimony it heard at trial of coDs concerning length of conspiracy during which D supplied drugs and so stipulated amount of drugs in plea agreement was generous, did not count as new information D was unaware of before sentencing where length of conspiracy was set forth in indictment, and PSR stated plea entered into on basis of stipulation to lesser drug amount. Court did not materially rely on trial testimony. No breach of plea agreement where government argued for high end saying that, had D gone to trial, it would be seeking a much higher base offense level than it was seeking, and that the quantities were beyond those stipulated to in the plea agreement, but the government was bound by the agreement to recommend the maximum. Though ?troubling,? where comments were made in response to defense contentions that D was peripheral supplier, and government affirmatively stated it was seeking sentence it agreed to seek in plea agreement, no plain error. No plain error in failing to make specific findings to support organizer leader enhancement (USSG 3B1.1©)) stipulated to in plea agreement for which there was support in record. Where no showing court would have imposed lesser sentence under advisory guidelines, no plain Booker error, especially where court heard evidence about nature of the defendant and still sentenced him to high end of guidelines.

05/29/07

Bravo

No jurisdictional nexus requirement that drugs transported in ?vessel without nationality? would affect United States is required under 46 USC 1903. Where captain of vessel stated vessel was registered in Colombia, and Colombian officials could neither affirm nor deny that vessel was Colombian United States officials could board vessel and apply provisions of 46 USC 1903. Though it was error to allow jury to hear evidence of jurisdiction, it was harmless where there was ample evidence of possession of marijuana with intent to distribute and jury was instructed that jurisdiction was not an issue in the case. Fourth Amendment inapplicable to aliens in international waters. Evidence of drug trafficking sufficient where defendants admitted knowing marijuana was on board vessel, and there was no evidence opposing jury determination that Ds? testimony of duress was incredible. District court acted within its discretion to wait until all evidence heard before it decided to give duress instruction. No clear error in denial of minor role reduction (USSG 3B1.2(b)) to Ds, even though they were crew members, not captain of vessel. No demonstration any were less culpable than others, nor that they were less culpable than average participant. Where court failed to make any statements as to why one D did not merit safety valve relief, remand for reconsideration. For other Ds, no clear error in denial of safety valve where court relied on testimony of experienced government agent that Ds? proffer describing duress and lack of knowledge of specifics of how drugs were to be transferred was illogical and incredible given that drug value was $7.5m. No jurisdiction to review denial of downward departure not based on lack of authority to depart. No Booker error where D sentenced to mandatory minimum.

05/25/07

Bader

In state habeas case, no abuse of discretion in state court?s limitation on discovery concerning whether leniency had been offered in exchange for juvenile witness testimony (unbeknownst to the juvenile) where plea transcript did not indicate that testimony was a term of plea, social worker participants in meeting between prosecutor and defense counsel testified that no deal for testimony was made, and witness was subject to cross-examination concerning his motives for testifying for the prosecution.

5/23/07

Capozzi

No error in upholding conviction on conspiracy count in which three objects of conspiracy were charged in conjunctive, government conceded evidence insufficient as to two of those objects, but the evidence was sufficient as to third. No Sixth Amendment violation in limiting cross-examination about whether witness plea obviated death penalty where RICO count with which D charged does not carry death penalty, nor was he charged or threatened with any death eligible offense. D also established independently on cross-examination that witness had powerful motive to cooperate and testify falsely if necessary. Evidence sufficient that robberies of drug dealers affected commerce by depleting assets of interstate drug business. Where D never challenged facial validity of count, no error in denying motion for grand jury transcripts to attack sufficiency of evidence.

05/23/07

Ramos-Paulino

Sentence vacated and remanded. Error in application of role in the offense enhancement (USSG 3B1.1) where only other participants whose activities were known were government agent and aliens who were to be smuggled, none of whom count as ?participants? for purposes of USSG 3B1.1. Management of criminal activities, standing alone, does not constitute a basis for role in the offense enhancement under 3B1.1. No error in failure to give entrapment instruction where informant?s assurances that nothing could happen to her in assisting alien smuggling because he was a police officer did not suffice to show inducement, which requires excessive pressure, threats, or exploitation of unfair advantage.

05/16/07

Goodhue

On remand for recalculation of criminal history category, ?district court may reconsider entire sentence.? Drug weight for non-tablet mixture of methamphetamine precursors is weight of chemicals themselves under USSG 2D1.11. Burden is on prosecution to show that isolation and weighing of precursors is not feasible. If not feasible, court may take guidance from Application note 1 of 2D1.1, and apply any reasonable method to approximate undeterminable weight from impure mixtures. Where isolation and weighing feasible, government bears burden of proving actual weight of pure precursor components. Burden is on government to demonstrate that no part of a mixture is a substance that must be separated from the controlled substance before the controlled substance may be used. If mixture does contain separable substance, government has burden of proving actual weight of usable mixture. If separation is not possible, court may make reasonable approximation of usable substance under Application Note 1.

05/15/07

Wood

Habeas petitioner did not qualify for extension of statute of limitations under 28 USC 2244(d)(1)(D) (for newly discovered evidence diligently obtained) where evidence was statement of police officer supporting petitioner?s theory that victim was initial aggressor, but defense counsel?s cross-examination of a witness indicated that counsel knew of statement at trial, and so was not diligent in failing to interview officer. Habeas petitioner did not qualify for extension of statute of limitations under 28 USC 2244(d)(1)(B) (for state-created impediment preventing timely filing) where, even though state withheld police officer?s statement, state did not prevent timely filing because defense counsel knew of statement at time of trial.

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