US v. DeCologero, Nos. 06-1274, 06-2390, 06-2391, 06-2392, 06-2569, 07-1086 . This is a pretty violent RICO case. I am not really going to do it justice. It has dismemberments. The First takes many pages to catalogue the facts, which include an attempted forced overdose of heroin, and a trip to Home Depot.
Julce v. Mukasey, No. 07-2362 (6/20/08). The First lays out the issue like so:
The petitioner raises a new question for this court involving the interplay between the immigration law's definition of aggravated felons, who are ineligible for cancellation of removal, and the federal criminal statutory exception in 21 U.S.C. § 841(b)(4) for reducing certain felony marijuana offenses from felonies to misdemeanor status.
I put more stuff down below.
Continue reading "CA1: no cancellation of removal for possession of small amounts of pot" »
US v. Otero, No. 07-1555 holds that in a “Rule 11" (i.e. a change of plea) proceeding, a defendant was “aware of the intent element of the drug-trafficking offense” even though the judge didn’t read it out loud. He raises an “entrapment” argument, but because he plead guilty and there was no real chance that he would succeed on that defense, that fails, too.
US v. Lewis, No. 07-1249. Okay, this is a selective prosecution appeal. Since Selya writes it and the defendant is a black Muslim accused of fairly innocuous false statements on the forms one must fill out when one gets a gun, who also might have gone to some countries with less than sterling reputations we know where it is going. In the past three years nobody else had been prosecuted for this in the Disitrct, and the USAO seems (this isn't clear) to have deviated from its normal practice. And, as Selya always does when send someone to jail, he used big words so that he can seem really smart.
Because it is pretty obvious that Selya isn’t take the thing seriously, I find it difficult to take anything that he says seriously. But, as any good lawyer must do, he must try pretend that the court has some coherent theory of justice interwoven within its rhetoric. To give you an idea of where Selya is coming from look at this choice line:
We live in an era in which the incidence of violent crime is high and terrorism is a persistent threat. In that climate, a false statement in a firearms application raises a modicum of concern, and the level of concern escalates almost exponentially as the number of weapons and the number of false statements grow.
This case comes to the First on an appeal from a denial of a motion for discovery in aid of his selective prosecution argument.
Keep reading.
US v. Hatch, No. 06-1902. Okay, this is the appeal of that guy that won “Survivor” and didn’t pay taxes on his winnings. He was convicted of three counts of filing false tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1). He signed a contract which said that he would pay all taxes on his winning in this stupid show. He later made some other money by appearing on some pilots of even stupider TV shows.
Anyway, stepping back from the stupidity of popular culture, let’s take a look at the live issues.
He wanted to argue that the procedures of the show were cheating and feeding the contestants. The producers, he claims, in exchange for his silence on the issue, promised to pay his taxes and therefore under Cheek v. United States, 498 U.S. 192 (1991) he wasn’t willfully failing to pay his taxes. But, nobody actually testified to such a promise, and it doesn’t seem like he was actually prevented from offering such testimony, though the actual rulings that the District Court made in the heat of the trial seemed to come fast and furious during direct, so maybe someone misunderstand what doors were open to what testimony.
The First also says that the “expert” testimony of IRS agents was error. But the First says that they were really “fact” witnesses. The First says that objections were either waived or not plain error.
The District Court has precluded certain testimony from the defendant’s accountant, but these seem to be on relevance grounds.
On the other side, he argued that the District Court improperly imposed limits on his cross. The First bashes counsel by saying that some of the proposed questions were “incoherent.” The First also says that his cross-examination just wasn’t restricted.
And, for all the sentencing buffs out there: a perjury enhancement was proper, even though he was acquitted of a perjury count. The First says the issue (like the amount of loss) isn’t developed.
The Ninth Circuit blog points to United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007). The defendant is one of those “crazy” tax protesters. Now, most of us refer to tax protesters as “crazy” in the sense that “they behave in a way that nobody I want to associate with behaves, and they have ideas that are so far outside my reality that I don’t take them seriously.” But, this guy is different. His lawyers actually think that he is crazy. A shrink writes a report which reads ““[h]is behavior is driven by a mental disorder as opposed to criminal motivation . . . Although it is true Mr. Cohen was not delusional or psychotic and was in possession of basic mental faculties, his will was in the service of irrational beliefs as a result of narcissistic personality disorder.” The Ninth says that this testimony could have helped the trier of fact, because the expert was proposing to testify that “...once Cohen adopted [Irwin] Schiff’s views, Cohen would not change his mind.... [and] a narcissistic personality disorder like Cohen’s can cause a person to continue to believe something to be true despite overwhelming evidence of its patent absurdity.” The Ninth expresses some hesitation about allowing in all of the proposed testimony, because some of it might really be invading the province of the jury to determine mens rea, but it says that weeding that stuff out is for the District Court.
Anyway, the guy did lots of things to annoy the District Judge. He was held in contempt (fifteen times), but the judge “failed to file contempt orders as required by Federal Rule of Criminal Procedure 42(b).” The Ninth says the remedy for this is to remand, but “On remand, the district court may reinstate the contempt convictions and resentence him so long as it does not increase the individual punishments for any of the fifteen convictions.” It also mentions a mathematical error. The Ninth says, however, that the District Court’s procedure (of doubling the sanction for each time he did something contemptuous) doesn’t raise due process problems, because it happened immediately after the offense occurred, and sentencing him post-trial for some of the contempts does not run afoul of Taylor v. Hayes, 418 US 488 (1974). Each sentence was less than six months, so there was no jury-trial problem.
The post ends with this:
Cohen has sparked much interest among bloggers. For a taste of a law prof's sour grapes (he was on the government's early briefing), see Brian Galle's comments here. More mens rea analysis (and some interesting gossip on other details of the case) can be found here.
U.S. v. Rodríguez-Durán, et al. Nos. 06-1400, 06-1401, 06-1402, 06-1403, 06-1404, 06-1405, 06-1406, 06-1407, 06-1408. This case affirms the conviction of nine seamen that were caught with a bunch of drugs off the coast of South America near Curaçao. Of note is the fact that the District Court denied continuances and went to trial within forty days from the indictment.
There are a number of issues here. I think the First is bending because a remand would call numerous convictions and a lot of work into question. But, whatever. Anyway, below the fold you can find discussion of:
Read on. Happy Thanksgiving. Turkey is murder.
Continue reading "CA1: More convictions for drug-running on the high seas " »
US v. Turner, No. 03-2608. The defendants were convicted of trying to rob an armored car facility. He was charged under the Hobbs Act under the both the weapon parts and the conspiracy parts. The defendant argues that he was “vicariously entrapped” because “...the FBI agents [via a third party] induced him to participate in the crime so that they could pressure him to provide information regarding the 1990 robbery of the Isabella Stewart Gardener Museum in Boston, about which they thought he had knowledge.” He also makes a Brady argument, but he can’t show prejudice. So, the government really doesn’t need to comply with it, Brady, I guess.
As to sentencing, the First notes that there is a “narrow theoretical “category of defendants that go to trial that might still be taking responsibility – people that challenge the government’s conduct with the entrapment defense. But, this isn’t it. The First’s analysis of this issue is really disappointing.
As to the entrapment claim, the First says it is harmless. It is framed in terms of a jury instruction, and the defendant argues that the “the instruction improperly informed the jury that the government agent must initially ‘target’ the defendant may have more traction.” But, I guess that issue is out there.
A real American would be getting ready to read the rest of this post.
US v. Portella, No. 06-1362 affirms convictions for conspiring to distribute cocaine, 21 U.S.C. § 846, and two counts of money laundering, 18 U.S.C. § 1956. The defendant had argued that there was “insufficient evidence.” You want to know where this is going. This is probably one of the worst cases the First has come down with in awhile.
Look at this line, “The Portalla effort to circumvent the jury's common-sense determination is utterly unpersuasive.” Anyway, a lot of it is fact-specific, regarding who appeared to be helping whom sell drugs and sell“throw-away” cellphones. (He claims he would have sold a throw-away phone to everyone.) However, the First gets a little silly, and then declares that “ In addition to the sale of illicit drugs, another obvious goal of the Carrillo conspiracy was the avoidance of police detection.” I am not sure that avoiding police detection is a crime. In fact, I think it is every America’s right to avoid police detection. Indeed, it is somewhat disturbing that our cellphones let the government know where we are is quite disturbing, and even more so since Americans are virtually required to carry a cellphone and phone companies seem quite willing to give up this information (and can be legally forced to, anyway). But, in theory, at least, we have the right to turn off our cellphone if we don’t want the government to know where we are. (However, I am told some cellphones can appear to be off, when the government has sent a friendly virus to keeping revealing one’s location to the cellphone of an alleged bad guy.)
Keep reading. If you care.
Continue reading "CA1: First screws up law of conspiracy, laundering, and privacy" »
Pike v. Guarino, No. 06-1019, 06-1020. In this case, like the last, Selya continues his use of big words, and descriptions of how hard he worked. Consider this line, “After working our way through a procedural quagmire, examining a mountain of paper, and studying a complex set of legal issues, we reject both appeals and affirm the judgment of the district court.” Is it really that novel that a court addresses a “procedural” issue or a “mountain” of paper?
This mountain of paper has something to do with the District Court conducting a rather full-blown evidentiary hearing that was similar to the post-trial proceedings at the state court. The First rebukes the state that argues that they don’t get two bites at the apple under AEDPA. Instead, the First says that since the petitioner did present the evidence at the state court (in this case via a proffer), she can make it again. The decision as to whether to hold an evidentiary hearing in the District Court is therefore in the Discretion of the District Court. But, the First seems to indicate that this big hearing was an abuse of discretion, but doesn’t say that it was, because, on the merits, it fails. Likewise, the commonwealth seemed to knowingly waive its exhaustion defense, and then tried to retract it. But, the First doesn’t let them do that.
Continue reading "CA1: Battered Women’s syndrome, competence, and AEDPA exhaustion " »
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