Appellate Law & Practice

CA1: not quite telling the truth about working for Walmart

US v. Riccio, No. 07-2604.  The defendant working for the TSA, and needed a security clearance.  He filled out a SF-86.  But, it turns out he neglected to state on it that he had worked at Walmart before (understandable, since many this is considered a shame in many cultures).  He also seems to have claimed that he was injured at the TSA, even though he was on disability because of something that happened at Walmart.  So, the government charged him with violating “18 U.S.C. § 1001, by knowingly and willfully making a materially false, fictitious or fraudulent statement on a document he submitted to the TSA, the SF-86 Form in which he did not list his Wal-Mart employment.”  Again, I sort of feel for this guy.

The biggest issue is whether the “knowing and willfully” prong of the statute was properly explained to the jury.  On plain error review, the First says that there was no plain error in the instructions or on the verdict form even though it left out the words “knowingly and willfully.”

During closing arguments, the prosecutor referred to a deposition in proceedings against Walmart that was not in evidence.  The District Court looked a the record and gave a curative instruction, rather than granting a request for a mistrial.  The government admits that the statements made by the government were “factually inaccurate.”  The First says is “prosecutorial misconduct” (but drops a footnote saying that this isn’t really as bad as it sounds.)  It cites United States v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007) (our coverage here.) 

But, having found that the government committed misconducting, the First rushes scurries around to save the conviction and give the green light to prosecutors that want to do this in the future, thereby turning some form of harmless error analysis into a rule of decision. It concludes that the curative instruction was okay, and it wasn’t a close case.  Whatever.

At sentencing, the District Court admitted the deposition.  There was some dispute as to whether it was reliable, but the First says that it was good enough.

Finally, the First says that the written judgment “fleshes out the details” of the oral sentence, and therefore it is not in contradiction.

For more reasons why I (and most lawyers) do not associate with people that work at or shop at Walmart, see this collection of Walmart stories.

 

CA1: An interesting Kimbrough remand

US v. Boardman, No. 07-1030 vacates a sentence for conspiracy to distribute heroin under 21 U.S.C. § 846 (2000) which was enhanced because of two burglaries.  The District Court held that under United States v. Fiore, 983 F.2d 1 (1st Cir. 1992), cert. denied, 507 U.S. 1024 (1993) that non-residential burglary is always a crime of violence under U.S.S.G. § 4B1.1.  But wait, says the First, "we [the First, that is] agreed to rehear United States v. Giggey, No. 07-2317, en banc, and that can’t be considered until the fall."

However, the First also points out that the District Court did have discretion to deviate from the guideline range based on his view that the prior felonies should not be so treated under Kimbrough v. United States, 128 S. Ct. 558 (2007).  And, the First says, if such discretion exists then he probably would be entitled to immediate release.  So, rather than wait for the rehearing of Giggey, the First says that remand makes more sense.

CA1: Anders on supervised release

US v. Carrera-Gonzalez, No. 07-2141 (unpublished).  This is an Anders brief-type appeal of revocation of supervised release.  The defendant seems to have argued that there was an agreement as to a specific sentence that wasn’t there.

CA1: at sentencing, pro se brief picks up obvious error

US v. Garcia-Ortiz, No. 06-1923. Wow.  “José A. García-Ortiz ("García") was convicted of intentionally obstructing and delaying commerce by robbery, armed robbery, and first degree murder under 18 U.S.C. §§ 2, 1951(b) (Hobbs Act), 924(c)(1), and 924(j).”  See also  18 U.S.C. § 1111(a)

The First reverses on the sentencing.  Let’s do that first.  It holds that “alleged co-felon can be ‘a victim’ for the purposes of the Guidelines.”  2B3.1(c)(1).  What is most surprising, is that the only relief he gets comes because of a supplemental pro se brief filed by the defendant.  The First decides that there is a miscarriage of justice because 18 U.S.C. § 1951 has a statutory maximum of 20 years, and the District Court gave him life under U.S.S.G. § 3D1.2(c).  Okay, how did the government, the District Court, AND counsel miss that one?

The government concedes that an FBI agent should not have been allowed to testify that an FBI agent that wasn’t familiar with the defendant should not have been allowed to ID him to the jury (first he guessed wrong, and second he was told who to pick).  For some reason the First goes into an “expert” analysis here.  But, the First says that although the government was sloppy, this shouldn’t cause a new trial, and gives a string-cite as to why this is okay.  Does this give a green light to the government to do this in the future?  Perhaps.

On plain error review, the court says that there was nothing wrong with a jury instruction regarding the definition of “robbery” in the convictions.  The First says that as a legal matter, “robbery” refers to robberies in interstate commerce.  I am not going to stress this too much.

The First also says that 18 U.S.C. § 1111(a) “does not require that the defendant himself pull the trigger.” 

This case contains an interesting tidbit: A supermarket had $63,000 in cash sales for one day.  This probably explains why they are so eager to give you cash back if you use a debit card. 

CA1: strange case on double-counting of non-remorse

US v. Cruzado-Laureano, No. 06-1815.  This is the defendant’s third appeal.  The First two were successful.  See United States v. Cruzado-Laureano, 440 F.3d 44, 45 (1st Cir. 2006) (our coverage here); and United States v. Cruzado-Laureano, 404 F.3d 470, 473-79 (1st Cir. 2005)(our coverage here).

The most interesting issue is whether a failure to express remorse can sort-of be double-counted as the guidelines function “to disqualify a defendant from receiving a reduction in offense level for acceptance of responsibility and as a factor in determining the defendant's particular sentence within the Guidelines range.”  He argues that he has a constitutional right to maintain his innocence.  The First cites a smattering of caselaw about this difficult issue but provides no real analysis.  Their own caselaw deals with the issue of “acceptance of responsibility” which I see as different.

The First says that the District Court judge wasn’t biased enough to warrant recusal because he denied him bail.

The First says that limiting the number of witnesses he could call wasn’t a problem, and was actually quite generous (and wasn’t an allocation problem). 

The First says that it isn’t the default rule that a remand for re-sentencing is “de novo.”  It acknowledges that in other circuits, this is the rule. 

The First says that a number of issues were waived because they were not developed at earlier hearings, and even though he prevailed in a later appeal that doesn’t give him another bite at the apple.

CA1: Selya surprises and says that fast-track progarms can be considered Post-Gall

US v. Rodriguez , No. 06-2656.  This case is by Selya.  The appeal involves whether post-Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) the First’s holding that sentencing disparities due to lack of “fast-track programs for the processing of immigration crimes” in some districts must be remedied by variances.  Without reading the case, I started writing snarky comments about Selya.  Then I read it, and he surprised me!  He actually holds that Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007) matter. 

He writes:

In fidelity to the Supreme Court's new gloss, we abrogate Andújar-Arias [507 F.3d 734 (1st Cir. 2007) (our coverage here)] to the extent that it is inconsistent with this opinion, vacate the sentence appealed from, and remand for resentencing.

His analysis can be boiled down to this:

• Like the crack/powder ratio, fast-track departure authority has been both blessed by Congress and openly criticized by the Sentencing Commission.
• ... Like the crack/powder ratio, the fast-track departure scheme does not "exemplify the [Sentencing] Commission's exercise of its characteristic institutional role." ...
• the Commission has "not take[n] account of empirical data and national experience" in formulating them...
• Thus, guidelines and policy statements embodying these judgments deserve less deference than the sentencing guidelines normally attract.

...If raised, the sentencing court will have to answer this question in a particular case. And where that answer is favorable to the defendant, a variant sentence premised on perceived inequities attributable to the availability elsewhere of fast-track departures would, given the Supreme Court's new gloss, seem to be entitled to deference "even in a mine-run case." ...

I got some more... and even stuff for non-criminal law types.

CA1: First tees up retroactivity issue

US v. Joseph, No. 04-1477 (unpublished).  This is a fairly interesting “crack guidelines” issue.  The defendant was sentenced before Booker.  While the First rejects his Booker issue and affirms the sentence, the First remands so that he can move for a reduction under the new, retroactive crack guidelines, and argue that the:

Guideline which makes the amendment retroactive, section 1B1.10, is itself unconstitutional, because according to Joseph, the provision provides limitations on the court's discretion once the court calculates the amended Guidelines range.

CA1: almost no relief on “role-in-the-offense” determinations

US v. Rodriguez-Guerrero, No. 07-1256 (unpublished).  The First makes it clear that “Role-in-the-offense determinations typically are factbound and, therefore, we will reverse the denial of minimal participant status only for clear error.... “ therefore “Our standard of review is not appellant-friendly.”  Yet, somehow, “ The line between minor and minimal participation is fuzzy.”  Because there is a “plausible” basis for concluding that the defendant wasn’t a “minor” participant, the defendant loses.

CA1: No under Fed. R. Crim. P. 35 relief for providing assistance

US v. Ellis, No. 07-1997.  A guy serving a 25-year sentence who claims to have provided assistance to a “warden of the federal prison where he was once incarcerated” moved under Fed. R. Crim. P. 35 to shorten his sentence.  What kind of assistance.  “...it suffices to say that the assistance was of value to the warden in running the prison.”  But, according to the convict, the warden made some promises.  “[T]o transfer Ellis to a lower-security prison and to write a letter to the sentencing court to "create an opportunity to have the sentencing judge consider reducing [the defendant's] sentence[] as a reward for [his] service." Only an idiot would believe such a promise.  Despite the fact that the convict was an idiot, the warden did write a letter, and the sentencing judge got it, the US Attorney did not move under R. 35 for a reduction.  The court didn’t move on its own motion to reduce the sentence.  The US Attorney, seeing that the convict was dumb enough to believe that a warden could help, did nothing either.  A law-abiding person would have retained a lawyer.

Thirteen years later, after the sentencing judge died, the convict moves himself under R. 35.  The District Court denied the motion and ordered the case “closed.”  The First, of course, says that such a “promise” can’t be enforced by the warden, because 18 U.S.C. § 3582(c)(1)(A) only gives the director of the Bureau of Prisons the power to file such a motion, and the BOP didn’t do this unless the prisoner had medical problems. Moreover, the current R. 35 has a 120-day limit.

The First adds that the warden doesn’t have necessary or apparent authority to bind the BOP or the US Attorney.  A long discussion of “agency” principles and how they impact the government (mostly under government contract law) ensues. 

Anyway, the moral of the story is clear: prisoners should retain counsel before “providing” assistance. 

CA1: no double-counting in identity-theft sentencing

US v. Sharapka, No. 06-2715.  This is an appeal sentence for 121 month sentence for identity theft.  The First says that the enhancement for “more than 10 but fewer than 50 ‘victims’” was okay, despite the fact that the defendant had argued that the issuing banks were the “victims.”  The government argued that the numerous vendors were the really losers.  The First concludes that “We believe that the district court properly relied on both the testimony regarding the conversation with American Express and the Sentencing Guidelines explanatory notes, which defines “victims” for purposes of § 2B1.1(b)(2)(A) as including ‘individuals, corporations, companies . . .’ See U.S.S.G. § 2B1.1(b)(2)(A), cmt. n.1.”  Strangely, this information was based on a proffer from the government.  The First rejects the idea the since government took an inconsistent position at a restitution hearing (because the vendors didn’t submit statements), it should not be entitled to rely upon that theory.

The First also holds that an enhancement under 2B1.1(b)(10)(A)(I) for “possession of ‘device-making equipment’” wasn’t a double counting with § 2B1.6 (mandatory consecutive sentence for identity theft).  The First concludes that “We believe that the plain language supports the government’s argument. § 2B1.1(b)(10) lists different offense characteristics, separated by the conjunction ‘or,’ whose presence may justify a two-level enhancement.”  But notes that “Had the court imposed the enhancement under § 2B1.1(b)(10)(C)(i) (“unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification”), then § 2B1.6 would preclude application of a two-level enhancement.”