Appellate Law & Practice

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). 

CA1: closing the courtroom is okay during contempt proceeding, as are some redactions

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

CA1: reselling prescription drugs causes loss

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.

CA1: another false statements to gun dealers case

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.

CA1: deputies sue sheriff under 1983 and win

Davignon v. Hodgson, No. 06-1191.  This is a 1983 action – by union corrections officers claiming that the First Amendment rights were violated – against the sheriff.  At trial, the officers won a small victory.  The sheriff appealed. 

The most interesting issue if how the First deals with an inconsistent verdict claim, as the 1983 verdict seems to have conflicted with the state law claims.  The First analyzes it and says that yes, the jury could find such a “strained” set of facts.

Strangely, the sheriff seems to have overdone the rhetoric against his officers by referring to Supreme Court cases.  But the First explains that most union speech actually is protected under the First Amendment and is, in fact, a matter of public concern.  (The First rejects the invitation to summarily accept this, and instead goes on a very long analysis concluding the same thing.)  Then it engages in a balancing of the interests at stake, and affirms the jury’s verdict.  Likewise, the First there was a “causation” case made out – in that the deputies discipline was caused by the protected activities.  Pretty much the same result is reached with regard to the “freedom of assocation” claim.

Evidentiary claims about admission of an administrative decision (used to show identity), and a reopening to present evidence of lost wages are affirmed. 

Finally, the First rejects some really strongly pro-defendant jury instructions, i.e. “Judicial review of prison officials' actions is very limited.”

CA1: a normal restart of questioning Miranda problem

US v. Lugo-Guerrero, No. 06-2745 affirms a conviction.  The big issue is whether un-Mirandized statements were improperly admitted.  The strange thing about Federal Miranda battles now, is judges seem to think that people that don’t properly invoke their right to remain silent (i.e. by requesting a lawyer that they already have on retainer) probably are criminals, anyway. 

Strangely, the District Court judge did not agree with all of the USMJ’s conclusions.  After some waiver machinations, the First concludes “FBI task force agents were not ‘automatically forbidden’ from later resuming the interrogation just because Lugo had earlier declined to make a statement to Puerto Rico police.”  The First then concludes that the defendant’s “right” to cut off questioning was “honored” and he was only questioned by other police later.

A sufficiency challenge is rejected.

A denial motion to suppress evidence of other crimes, on “substantially more prejudicial than probative” grounds is held not to be an abuse of discretion.

CA1: guns+drugs, in criminal law, do mix (and defendants lose)

US v. Marin, No. 06-1912.  This is a 18 U.S.C.§ 924(c) (firearm “in furtherance of drug trafficking” conviction).  Now, in light of Heller, the law might be different.  There was a gun in the bedroom, but nobody saw him carry it or use it to buy drugs.  Despite the need for certainty in criminal law, the First has no problem saying   The "’in furtherance of’ element does not have a settled, inelastic, definition.”  Got it.  So it means whatever a court reviewing a conviction say it means regardless of what the jury thought it means.  The First seems to stretch to say that because the gun was in the bedroom, it could be easily accessed at night, and therefore, the jury could have inferred that he had it to protect his drugs.  But, this doesn’t end the bending.  A DEA agent said that it “was obvious” why he had the gun and therefore the agent didn’t ask the defendant why.  The defendant says this violates FRE 702, but the First says that on redirect the government managed to turn it into something other than expert testimony.

A bunch of stuff was found in the defendant’s home.  All of it came in despite FRE 404 objections.  The most notable is the reference to “Scarface” memorabilia, but the First says that the defense opened the door for that.  Secondly, an incident with a billyclub isn’t too prejudicial, becuase it shows what the defendant would have done to keep up his drug trade

Appellate Review coverage of Jencks Act split

We covered United States v. Colón-Díaz, 2008 WL 787389, *22 n. 8 (1st Cir. Mar. 26, 2008) here.  Appellate Review provides more here, describing the split between whether “Government Agents Always Preserve Rough Interview Notes When Those Notes Are Incorporated Into a Formal Report?”

CA1: even though some in the government might agree with the defendant, the jury can still convict

US v. Lachman, Nos. 06-1058, 06-1060, 06-1061 affirms a conviction for violating the Export Administration Act of 1979 ("EAA").  All the defendants were “convicted by a jury of exporting (and conspiring to export) a control panel for a large hot isostatic press ("HIP") without the export license required by the EAA and its regulations.”  This is the second time this is before the court.  In evaluating a sufficiency challenge, the First says that enough evidence of scienter existed, the First says that it is good enough that the defendant said that he had figured a way to “get around” certain provisions, and didn’t seek a ruling from the Department of Commerce on the issue. 

There is a really interesting argument that the defendants are entitled to a new trial on the basis of newly discovered evidence.  The evidence, in this case is that various government officials agreed (at one time or the other) with their interpretation of the law.  However, the First says that the defendants really didn’t proceed on that theory at trial and there is no evidence that they had a belief similar to those of the government officials. 

The defendants make a Brady argument – that minutes of an international conference supporting their construction of the statute would have been in the department of commerce’s files.  The First says it isn’t prejudicial.

Finally, the First says that a failure to conduct a Fed. R. Crim. P. 44(c)(2) lawyer representing tow clients doesn’t per se entitled him to a new trial.  Instead the defendant can only “prevail only if there was a plausible alternative defense strategy that was either foreclosed or inhibited by the joint representation.”

CA1: Jencks and hearsay

US v. Colon-Diaz, No. 06-2550 affirms a conviction in a drug case.  There are some interesting evidentiary issues

But the most interesting issues is a Jencks act violation.  The DEA agents destroyed the “rough” copies of their notes.  But, it wasn’t objected to at trial.  The First says that it isn’t plain error.

The First says that it is “context” (rather than hearsay) for a government informant witness to say that she was told to go to the defendant’s store, and it isn’t being offered for the truth that he actually owned the store.  The same goes for descriptions of the investigation that lead to the drug buys.  The judge seems to have been pretty careful about providing instructions on these issues.

The First explains that “In order to preserve an objection to the admission of a coconspirator statement under Rule 801(d)(2)(E), the defendant must ask the district court to make, at the close of the evidence, what is known as a Petrozziello determination. See United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977).”  And, as such, only the renewed parts of the objection can be reviewed for abuse of discretion (and the rest for plain error).