CA1: consecutive sentences, brandishing, and all that

US v. Feliciano-Rodriguez, No. 06-2719.  This is a drug conspiracy appeal.  Pretty exciting facts... including someone in the witness protection program. The government seems to concede a lot on appeal, essentially saying that the District Court judge went too far in trying to send someone to a tax-payer supported hole.

The biggest issue, I would say is that the First circuit says that Consecutive Sentences for the use of a firearm as part of a conspiracy violate double jeopardy.

The government concedes the life sentence imposed on See 18 U.S.C. § 924(c) and (o) violated the 20 year statutory maximum.  Likewise, the government also concedes that the defendant never “brandished” a firearm or made it known to people.  So, the conviction under 18 U.S.C. § 924(c)(1)(A)(ii) is vacated. 

The first says that the District Court committed “clear error” by finding that dealers worked “every day” when in fact they worked “Every other day” (based on the record).  However, the First concludes that this is harmless (yet clearly erroneous). 

A drug quantity argument is rejected. 

The government presented the testimony of some cop that provided “overview” testimony which was mostly conclusory assertions.  The judge cautioned the government against doing this.  On plain error review, however, the First gives the government a pass, so I guess we will be seeing more of this kind of testimony.

The issue gets a little more interesting when the defendant argues that the cop, while permitted to give “lay opinion” about how a “drug point” works shouldn’t be able to avail himself of FRE 705 (underlying data for experts).  But, it seems that the First says the defendant didn’t identify what otherwise-inadmissible material was disclosed to the jury.

Regarding the admission of co-conspirator statements under FRE 801(d)(2)(E), are turned away because they are “harmless” or “not errors” or there was “no prejudice.”  I don’t think the First is taking this too seriously.

A variance argument is also rejected.

FRE 403 objections are turned away.