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US v. Vargas, No. 07-2536 (unpublished). A defendant plead guilty to “illegal re-entry” even though he said that he wanted to contest the due process in the underlying deportation order, but the First says that the guilty plea operates as a waiver on that issue.
US v. Bucci, Nos. 06-2746, 07-1087. The facts of this case go on and on, but it essentially comes down to dirty-cops-turned-drug dealers.
The really big issue is the “courtroom closure” issue. “Bucci argues that the district court erred by closing the courtroom during jury selection and later during a contempt proceeding against Raftery [who was refusing to testify].” The First says that the jury selection argument needs to be developed on collateral review. But, the First explains that the Sixth Amendment doesn’t really apply to civil contempt proceedings, and this contempt proceeding was really “collateral” to the defendant’s trial, as no evidence was really presented against the defendant.
The second big issue if whether the government can present a partially redacted transcript. Despite the FRE 106 rule of completeness, the First says that nobody was prejudiced.
But there is more below the fold
US v. Wilder, No. 06-2213. This is a child pr0n conviction. The first issue is whether the search warrant affidavit was based on stale evidence. The District Court said it wasn’t stale, even though the affidavit only showed that he downloaded pr0n. But, I guess everyone gets to “infer” that if one downloads things, they keep them.
Applying United States v. Rodriguez-Pacheco, 475 F.3d 434, 439 (1st Cir. 2007) (our coverage here), the First says the government doesn’t need expert testimony to provide that “the children were real” and not computer-generated. Judge Stahl disagrees with this part of the opinion, and says that the First is ignoring Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and says that “The logic of adopting this rather odd assumption about the dynamics of the child pornography market as a rationale for concluding that the child in any given picture is unlikely to be virtual rather than real is questionable at best.” But, Stahl is missing the point: the First WANTS to get caught up in the child pr0n hysteria. People like it that way. Whatever the case, Stahl figures that there was expert testimony on whether they were real children.
Then the First says it is up to the jury to determine whether the pictures actually depict “sexually explicit conduct.” However, it is unclear what the minimum the government would need to introduce would be.
Regarding the “knowing” element of “receipt” of pr0n, the First says that “there was ample evidence of what he was looking for” and distinguishes it from case where people get a big ol’ barrel of pr0n (some legal and some illegal).
Regarding the “knowing” element of “possession” the First jumps over the issue of whether he preserved his argument and concludes that based on the “opinion” testimony of two experts he “knowingly” saved pictures into a certain place.
Martinez-Medina v. US, No. 06-1594 (unpublished). This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255. The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence. But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.) Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error. Therefore, the statutory maximum was life, and there were no real Apprendi claims. Therefore, appellate counsel’s concession didn’t make a difference.
The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.
US v. Pena-Gonzalez, No. 05-1402. This case was first before the court in United States v. Rodríguez-Marrero, 390 F.3d 1, 32 (1st Cir. 2004) when it remanded for re-sentencing. The District Court didn’t hold a sentencing hearing, and instead it “trimmed the original judgment without sentencing him anew” as the government told it to. (This matters because Booker might allow the defendant to escape a life sentence).
But, the First resolves the issue on the “law of the case” doctrine (the “mandate rule”) part of it, and holds that the District Court didn’t really take the letter and spirit of the mandate seriously, and the District Court should have read the mandate “like a statute.”
The First then points out that the prosecution – as much as the District Court – is at fault, because it seems to have tricked the court into thinking that it had made a finding (that the crime was in furtherance of a drug conspiracy) that would subject him to life sentence. The First says that this trick deprived the defendant of his ability to allocute at sentencing which is “scared.”
US v. Marti-Lon, No. 07-1040. This is an unlawful distribution of prescription drugs case. Essentially this shows how screwed up our prescription drug market is. “The drug wholesalers then sold the drugs to Martí-Lón at a lower cost because Martí-Lón [falsely] represented that the drugs were meant to be resold in Brazil.” She resold them stateside, and that is a crime. (She also falsely claimed to be licensed, but that is another issue.)
But, setting that aside, this comes down to a normal criminal trial, so we got allegations of prosecutorial misconduct, loss calculation, juror misconduct below the fold.
Continue reading "CA1: reselling prescription drugs causes loss " »
US v. Whitney, No. 07-1934. This is another 18 U.S.C. § 922(a)(6) (false statement to a gun dealer)
case. The big question is whether the
jury was properly instructed on the “willfulness” element. In this case, the defendant was not only
under some restraining order, but he had been previous arrested for violating
that order. Relying on United
States v. Edgerton, 510 F.3d 54, 57 (1st
Cir. 2007) (our coverage here), the First says that no “willful blindness”
charge to the jury was necessary and cites a few other cases for support.
Finally, it wasn’t an abuse of discretion to admit the
earlier arrest, as it showed knowledge of the order.
US v. Morales Aldahondo, No. 06-2533.
See the comments and this post for correction of some errors.
In a child pr0n case, the First hold that a Franks hearing regarding the staleness (three years) of material obtained reached an acceptable conclusion. There is a little problem with the Court’s logic. Look at this paragraph, complete with cites:
As earlier recounted, both the warrant application before the magistrate and the testimony presented to the district judge provided considerable support for the government's position that customers of child pornography sites do not quickly dispose of their cache. This is not a new revelation. See Ricciardelli, 998 F.2d at 12 n.4 [(1st Cir. 1993)]("[H]istory teaches that collectors prefer not to dispose of their dross, typically retaining obscene materials for years.”). Accord, e.g., United States v. Irving, 452 F.3d 110 (2d Cir. 2006) (two years); United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) (five years).
A cache is different than a collection. A “cache” in cyber-speak is a portion of a hard drive that keeps images in case you want to view them again. While most users know how to delete their cache (usually to free up space), most users do not use the cache as a means to access images, as the computer will likely delete them when it figures it needs more space.
Moreover, most users have little or no control over what goes into their cache. If you go to a website, whatever pictures there will be in your cache. Making this a bit more complicated is the fact that there is an affirmative defense under 18 USC 2252(c), for someone that inadvertently comes across an “illegal” image to destroy it. Most people would figure that they never “had” an image in the first place, so they have complied with 2252 by simply not looking at the webpage anymore.
Whatever the case, the First concludes that “ In our view, the testimony of the government’s knowledgeable witness, combined with the weight of authority, defeats appellant's staleness argument. Thus the district court did not err when it denied Morales's motion to suppress.” It seems that the First is confusing human “cache” of things with a computer’s “cache” of images. Maybe the First didn’t understand this, or maybe they are just reaching to help the government.
Finally, the First says it wasn’t an abuse of discretion to let the jury see some of the photos.
Chardon-Dubos v. US, No. 07-1966 (unpublished). This is what was in the complaint.
...alleged that the Federal Government's failure to exercise sovereignty over Puerto Rico resulted in the Puerto Rican government choosing to spend money lobbying Congress on the issue of Puerto Rico's status, which in turn reduced government expenditures for other purposes, causing price increases and reduced services to Chardon-Dubos as a resident of Puerto Rico.
It was dismissed for lack of jurisdiction (on a standing theory). Affirmed
Recent Comments