CA1: First takes sides on 32(h)

US v. Vega-Santiago, No. 06-1558.  The big news is that the First holds that Federal Rule of Criminal Procedure 32(h) applies to post-Booker variances,  as well as to Guidelines departures.  The First acknowledges that it is splitting with the Seventh.

But, this doesn’t really help the defendant as the court concludes that he received reasonable notice.  Why?   “[Citing Burns v. United States, 501 U.S. 129 (1991)] ... Vega learned of the court's intention to sentence outside the Guidelines during the colloquy that preceded the formal sentencing, and Vega's attorney had the opportunity to respond at length to the court's view that a variance was warranted on the ground that this was an atypical carjacking, involving a home invasion.”  So, minimal notice is required where the court relies on “record facts.”  There is a lot of discussion in here about what kind of notice is required, but the court snatches defeat from the jaws of victory, because “record facts” were “known to counsel.”   

The government concedes that the written sentence varied from the oral ones, so there is a small remand for that.

The government screwed up this carjacking case by not presenting evidence that the car traveled in interstate commerce.  The judge really seems to have gone out of his way to give the government a pass on this.  The District Court Judge said this:

I have a responsibility, I think, if it were intent, if it were something that he acted knowingly, willfully, if it were a major element of the offense, you would have walked out of here with a Rule 29, without a question.

But an issue like that, when everybody knows that a Nissan is not manufactured in Puerto Rico, that I could take judicial notice of that? [The government] should have presented the evidence. I am not excusing you for not doing it. He is an experienced prosecutor, and he had all the obligation in the world to do it, and he did not.

But I do think I have a major obligation to do the right thing, and the right thing is to reopen.

Sure the District Court’s explanation is incoherent, but the First says it wasn’t an abuse of discretion.  So there you have it folks, the government can cure its defects and the District Court judges will help them out.  In fact, the First now seems to be saying that the District Court judges have an obligation to do the right thing, which, I guess, is to side with the government.

The First also holds that the victim’s identification of a carjacker was tainted.  In this case, the victim arrived at a place where the police were questioning a person and identified him.  No pre-trial motion for suppression was made, and no reason to resurrect that claim is given.  Likewise, a Miranda argument (the question of whether a confession was Mirandized was litigated) is affirmed on the facts.

SL&P comments here.