CA1: 12/23/05 -- contempt and attorneys fees; and flight evidence

There were four cases on December 23, 2005.  Below the fols you can find a really intersting opinion dealing with the government's doomed efforts to take money from defense attorneys, via both RICO and contempt, admissibility of evidence of flight, the post-Booker standard of review of guidelines interpretations, and an age discrimination case.

• US v. Saccoccia, No. 04-2669, reverses the civil contempt order against two criminal defense attorneys that “accepted legal fees from their client in the face of an earlier protective order restraining the defendant client from disbursing certain assets.”  The lawyers represented their clients at trial, and on appeal, and lost.  This got under the collar of the government attorneys, who, in my experience, have rarely represented non-glamorous criminal clients (these guys are a little glamorous, with accounts in Switzerland).  So, they sought to recover their fees, but arguing that the funds were forfeited under RICO.   “The district court rejected the government's forfeiture claim as to fees paid before the jury's verdict of conviction. It allowed the claims for fees paid after the jury verdict but before entry of the judgment of conviction -- an approximately three-month span in 1993.”  But, then the court vacated even the government’s partial win.  In 2004, “The government then tried again, via a motion filed in 2004, to obtain an award of the post-verdict fees, this time utilizing a civil contempt theory.”  The District Court agreed, found them in contempt, and the First Reverses, and provides a nice discussion of civil contempt, and holds that the protective order – issued ex parte pursuant to 18 U.S.C. § 1963(d)(1)(A) -- didn’t “unambiguously enjoin Hill and O'Donnell from accepting the attorneys' fees in question.”  The text of the order is hardly a model of clarity since… “The phrase "$140,000,000 in U.S. currency" does not itself identify assets or state whether it is inclusive of all assets belonging to Saccoccia. Further, the Order did not itself distinguish between tainted and substitute assets; it instead referred only to assets "for which [Saccoccia is] jointly and severally liable." Further, a US Attorney told the attorneys that “told them that the U.S. Attorney's Office in Rhode Island had never sought to forfeit reasonable fees paid to attorneys.”  But apparently, something political happened in the US Attorneys office, which changed this position.  DOTD comments here.
  
• US v. Benedetti, No. 05-1033, finds that it wasn’t error to allow the government to introduce evidence that the defendant fled to Florida, and rejects a Booker argument (preserved via a Blakely objection). Initially the district court had excluded the flight evidence under FRE 403, but reversed itself after the defense counsel made references to various delays in prosecution. “In announcing this ruling, the court made clear that the witnesses were free to deny knowledge of the appellant's flight and that the appellant was free to adduce evidence suggesting an innocent purpose for his abrupt departure.” The court rejects the Booker by noting, “review for reasonableness based on the factors enumerated in section [18 U.S.C. § ] 3553(a) is not applicable to sentences, like this one, imposed pre-Booker but heard on appeal post-Booker.”

• US v. Robinson, No. 05-1547, affirms the District Court’s “application of a sentencing enhancement for prior threatening and abusive behavior [USSG § 2A6.2(b)(1)(D)] and challenges the court’s failure to reduce his sentence for acceptance of responsibility [USSG § 3E1.1].” Specifically, the First finds that, in an advisory post-Booker regime, the government didn’t waive its 2A6.2(b)(1)(D) by not putting it in the pre-sentence report, and not objecting to it at sentencing, and his argument about whether he should have gotten the enhancement is therefore academic, because even without the enhancement he would have gotten the same sentence. But, the court also holds that USSG § 2A6.2(b)(1)(D)(b) can still be applied to convictions under 18 U.S.C. § 2262 (interstate violation of a protective order), even if the “victim” willing traveled with the defendant, and that the guidelines do more then just enhance the sentence based on conduct itself, because they enhance the sentence for a pattern of behavior. As to his acceptance of responsibility, the court agrees that a guilty plea, itself is not acceptance, and it notes that the guy continued to threaten his ex-wife, anyway.  Of note, the court concludes that Booker does not alter the standard of review of determining whether on the guidelines someone sits, and “We will continue to determine the legal meaning of Guidelines provisions de novo. This conclusion is, to our knowledge, consistent with the conclusion reached by those of our sister circuits that have resolved the standard of review to be applied to a post-Booker sentence imposed under the Guidelines.”

• Rodríguez v. Sears Roebuck de Puerto Rico, No. 05-1951, would have been the usual ADA claim, but in this case, the court notes that  “This is not the usual claim by a former employee that her employment was terminated due to discrimination. The claim is rather that when Rivera sought reemployment with Sears, she was not hired for two positions…”  But, in the end the District Court granted summary judgment, and the First affirms.  But all of the evidence she offered was pretty much the speculations of one Sears employee about what others might want.