Happy Memorial Day People. The opinions from Friday will be coming out in drips and drabs this weekend, as I will be interspersing remembering those who died for our freedoms with reading opinions from the First Circuit.
US v. Fornia-Castillo, No. 03-1069, No. 03-1070, results in another remand for resentencing under Booker because “we are not convinced that a lower sentence would not have been imposed.” The defendant was pro se! Read on for the double jeopardy and consent search issues.
The court also holds that: consent to a trunk search was valid, and it did not have to be analyzed under Miranda's standards for custodial interrogation. Because the defendant was on a busy street (in handcuffs surrounded by police officers with guns drawn) and not in a police station, his consent was indeed “voluntary.” Damn.
Fornia raises a “constructive amendment” argument, but the court rejects it, because although “there was a variance between the government's proof at trial and the charge alleged in the indictment”... “Fornia fails to establish any prejudice resulting from the variance...” since he was on notice of this change.
Likewise, the First Rejects a double jeopardy claim, applying Blockburger v. United States, 284 U.S. 299, 304 (1932), as just because one a charge “could have brought the charges in a superseding indictment or could have more promptly moved to consolidate...” the other two counts doesn't offend Blockburger.
The court also rejects a IAC argument, but, as always says that it can be raised on habeas.