Appellate Law & Practice

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US v. Carrera-Gonzalez, No. 07-2141 (unpublished).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: First screws up law of conspiracy, laundering, and privacy

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.

CA4: If the government waives an issue, the 4th will always be there to help

U.S. v. Blahstein is a great example of a court reaching to help the government.  Granted, this comes from the Fourth Circuit that was proud to hold that the government can hold Americans as long as it wants with no review, so it can’t be taken too seriously.

Anyway,  as most of you know, there still is some post-Booker controversy under Fed. R. Crim. P. 32(i)(1)(C), regarding whether a court must give notice of an intent to depart from what is known in the pre-sentence report or what is otherwise available in the record.  In this case, the sentencing court, departed below the guidelines.  The government didn’t object.  Instead, since the defendant had reserved his right to appeal a suppression issue, the government cross-appealed. 

CA1: speedy trial act and jury requests

US v. Rodriguez, No. 05-1498 (8/2/06).  The defendant loses on four grounds, holding that:

1. The District Court did not err in excluding time from the Speedy Trial Act’s (18 USC §§ 3161-3174) clock when it treated two separate motions by the defendant (For an extension of time and empanelment) that would have delayed the trial as separate.  The First notes that the trial court judge’s order cites to a non-existent part of the Speedy Trial Act.  Also, the court complied with Zedner, by providing its rationale.
2. There isn’t enough on the record on direct appeal to resolve whether the defendant was ineffectively assisted when his lawyer didn’t cross-examine a witness who might have been subject to some juicy impeachment.
3. A motion for acquittal, based on insufficient evidence, was properly denied, when a witness testified that it “looked like” the defendant had a gun.  Good enough for 18 U.S.C. §§ 922(g)(1) (felon in possession); and
4. It is within the District Court’s discretion to provide the jury with transcripts, and a request from the jury, as worded, seemed too burdensome. 

CA1: racial profiling at border is cool

US v. Barrow, No. 04-2722.  Dude was stopping coming into the country.  The court describes just how fishy the guy looked, and eventually customs agents found cocaine in bottles inside a duty-free box that, unlike most duty free boxes was old and broken.  The District Court denied a motion to suppress the liquor bottles, and denied a request for an evidentiary hearing and he was convicted.  “Barrow does not contend that the testing of the contents of the liquor bottles was non-routine. He merely argues that the search was unreasonable but cites no case law in support of this proposition.”  The court does not address whether the testing was actually conducted in his presence, because, they figure it doesn’t matter. 

As to the evidentiary hearing, Barrow had argued that he was stopped initially because of his race.  But the court says that since initial stops at the border can be made for any reason or no reason at all, that the 14th amendment’s application to the 4th doesn’t matter, so even if the agents were lying about the reasons for stopping him, it doesn’t matter.  Essentially this means that racial profiling at the borders is like totally cool!  (I think the anti-racial profiling-crowd could do a better job of explaining this distinction: that most racial profiling arguments only kick in based on the protections afforded by the 4th.  For this reason, it made perfect sense when the administration declared that it would not racially profile, except in cases where it thinks that the 4th amendment doesn’t apply at all. See "Racial Profiling Fact Sheet" p. 6.)

For other holdings relating to sentencing, chains of custody, and cops who testify sort-of-as-experts, keep reading.

Luttig resigns

Story here.  Now who will we get to explain how the executive can do whatever it wants?

CA1: social security corroboration

Wright v. Barnhart,No. 05-2420 (unpublished) is a perfunctory social security appeal.  It was filed one day late.  The court still seems to reach the merits and holds that it was cool not to accept the testimony of an expert whose opinion regarding physical limitations was not corroborated by medical records.

CA1: NOT burning down the house

US v. Decicco, No. 05-1645 affirms a conviction under 18 U.S.C. § 1341 (mail fraud). In this case, although the defendant was acquitted of crimes under 18 U.S.C. §§ 844(h)(1) & (2) (arson-like things), he was convicted of essentially defrauding the insurance companies inflating the cost of the demolition of a building that was destroyed by fire.  On appeal the defendant argues that there was a material variance between the indictment and the proof offered at trial.  The defendant argues that he preserved the error (via motions for acquittal), but the first disagrees, and review for plain error.   Keep reading.

CA4 - Booker Unreasonableness

United States v. Moreland (Wilkins, J.)

Although I normally do not cover the Fourth Circuit, it's worth noting that the Fourth Circuit declared a ten year sentence for distributing ten grams of crack to be an unreasonably lenient sentence.  The Guideline called for a 30 year sentence because this was the defendant's third drug offense.  One of those prior offenses was for giving someone a joint.  There was no evidence that the defendant was violent or possessed a firearm.  The district court gave him the mandatory minimum ten years.  The Fourth Circuit vacates basically because this was a 2/3 reduction from the Guidelines.

That a non-violent. low-level drug dealer could get 30 years seems to be more persuasive evidence that the Guidelines are unreasonable.  I have seen murderers get less.

Interestingly, the Fourth Circuit bases part of its reasoning on the defendant's poor employment and educational record.  The court does not discuss the Guidelines instruction that these factors are ordinarily not relevant, at least to a sentencing departure.  See USSG 5H1.2 & 5H1.5.  Compare this with the Fifth Circuit in United States v. Duhon, where the court vacated a sentence because the district court failed to consider these policy statements in calculating a non-Guideline sentence.

What a mess!

Breaking news: Fourth Circuit Rules Against Government in Padilla

According to Prafsblawg.  The Fourth, it seems, has quite unkind words for the government, and, in the words of one semi-famous attorney, "[G]rew some balls."