Appellate Law & Practice

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). 

CA1: First Circuit really bends to say that tapes “contain” photos (and some sentencing)

US v. Rogers, No. 06-2532.  In a child pr0n prosecution, the cops got a warrant for a house, specifying that they were to look for “photos of [a minor child].”  They found a videotape.  He was charged in state court, and later in federal court.  He says that this exceeds the scope of the warrant because videotapes are not photographs.  They are not.  Photographs are not magnetic media.  Videotapes are.  Completely different process. The First seems to think that a hard drive, a tape, or any sort of digital or magnetic media is a “container” for a photograph.  This is crap.  A container for photos is usually called a “frame” or a “wallet” or an “album.”  This is the "common sense."  But the First has other ideas.  Whatever is on a tape or a hard drive is a reproduction or a rendering of something.  Likewise, a “my money” but a “representation” of my money (or my right to collect some money).  In fact, it is only because my bank is stable and the FDIC exists that I am pretty sure that I can get my money out of it. 

So, the First bends to help the cops.  Predictable.  The First calls everything else “hypertechnical” with little analysis of the major philosophical or legal issues at stake.

What is sad about this, is that if you take their decision to its conclusion, natural persons are contained on hard drives and videotapes.  After all, if you think that a hard drive “contains” a photo, you must conclude that a photo contains as person.  Therefore, guess what?  Your firm’s web server (which contains a photograph of you) contains you.  Likewise, if you are one of those idiots on Myspace, you now exist in the computer.  Also, contained in my tape of “The Blues Brothers” is Jon Belushi and that lady that played Princess Leia.  In the First Circuit, life is like Tron, and I have quite the party in my den.

There is more.  Keep reading.

CA1: experts in warrant applications

US v. LaFortune. No. 06-1699 affirms a conviction in a child pr0n case.  The main objection raised by the defendant is that in reviewing an application for a search warrant, the magistrate lacked "informed lay opinion, evidencing some kind of basic technical familiarity with virtual imaging and giving specific reasons why the proffered depictions could readily be ruled out as artificial creations."  The says that United States v. Syphers, 426 F.3d 461, 467 (1st Cir. 2005) (our coverage here) doesn’t require an expert opinion, but provides dicta as to “best practices,” and that United States v. Rodriguez-Pacheco, 475 F.3d 434 (1st Cir. 2007) (our coverage here) “never suggested that such expert opinion testimony was required to support a factfinder's determination that the image at issue depicted real rather than virtual children.”

Objections to enhancement of his sentence based on 18 U.S.C. § 2251(e) (prior conviction) are rejected for predictable reasons.

CA10: Daubert in criminal proceedings

White Collar Crime Prof Blog points to US v. Nacchio, No. 07-1311.  This is an insider trading case, but it is also a very good one for anyone that had to deal with scientific evidence.  Strangely, the Washington Legal Foundation supported the defendant in a criminal case.  I wonder why.  Oh yeah, he is rich. 

There are some ironies.  The District Court chided the government for writing 63 pages in opposing proffered expert testimony, because it said it should obviously be excluded.  The Tenth says it should have been admitted.  Why do judges say things like this?

The court differentiates between Fed. R. Crim. P. 16(b)(1)(C) and Fed. R. Civ. P. 26(a)(2)(B)(I), and explains the greater burden that the parties have in civil cases have to disclose the basis for expert reports.  Of course, this kind of decision will probably enable the government to use more of that silly “cop as expert” testimony used to put the lower classes in jail.

Whatever the case, the Tenth says a lot about what District Courts must do when faced with a Daubert challenge.  (Sexy issues dealing with the government's program to violate the FISA are not seriously dealt with.)

And, agreeing with me, the Tenth says, “Armchair economics is not the way to decide complex securities cases.” Is this a diss on Posner?  I think it is.  Posner has taken it upon himself to trash experts (as a matter of law) so that they can never testify again in the Seventh without making specific findings himself.  In a later post, WCCPB says that this "reaffirms that principle and emphasizes that included in the right to present a defense is the right to explain that defense to the jury."

By now you should know (if you don't, you are a bad lawyer, lack detail orientation, and should be disbarred) that the Supreme Court in Melendez-Diaz v. Massachusetts, 07-591 (police "lab" reports and Crawford).

SL&P comments here.

CA1: the use of timebarred discrimination and remedies for mixed motive discrimination in the US Marshal’s office

DeCaire v. Mukasey, No. 07-1539.  I thought this was an immigration case.  But it is far more interesting.  A deputy US Marshal claims that she was discriminated against on the basis of “gender and retaliated against her after she filed complaints with the Equal Employment Opportunity office.”  The District Court found that yes, she was discriminated against (and the government’s neutral reasons were not credible) but the Marshal’s “hostility was motivated by his perception that DeCaire was disloyal to him personally, and not by gender animus or retaliation.”

Most of the events happen in the various courthouses in the District of Massachusetts, and I am sure that a good 7 of my 9 readers will consider this case to be juicy gossip.  However, I don’t really care about that stuff, so I skipped over most of the facts.  (Note: I do not know any of the parties personally.)

CA1: Selya and selective prosecution

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. 

Posner's trashing of Experts

DotD has a post entitled “Seventh Trashes Prominent Finance Professor” which you should read.  Essentially, Posner flexes his muscles and says that a PhD economist “cannot be trusted to continue as an expert witness in the case in which he has demonstrated that willingness, and perhaps not in other cases either.”

There is a fundamental flaw in this.  Rule 702 doesn’t require or even demand scrutiny of an individual expert’s character.  Moreover, the Federal Rules do not “certify” individual experts as always being admissible.  Their propose testimony (or perhaps actual testimony) is scrutinized on a case-by-case basis by individual trial court judges based on whether it will assist the jury.

Yes.  I know, Posner likes to think that he knows about science.  But, in declaring that an expert can never be good enough to assist any jury (apparently with stare decisis effect), he has essentially usurped the jury’s function.  But, hey if Posner would do that with so-called “cop” experts, maybe I would be more cool with it.  But, it ain’t going to happen.