Appellate Law & Practice

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.

CA6: Sixth Circuit turns habeas preclusion against the state

DotD points to a decision from the 6th Circuit which holds that if the state courts, pre-Atkin concluded that someone was retarded to be killed by the state but nevertheless could be killed by the state, post-Atkins, the state can’t relitigate the issue of just how retarded the prisoner is on habeas.

CA1: how do deal with a 5th and 6th amendment clash

US v. Rivera-Rangel, No. 05-2042.  In this case in which Selya hammers it into our heads that he can use big words, this case was first covered here.  Essentially this is a Hobbs Act case.  While a JNOV was earlier reversed by the First.  In this appeal Selya uses a bunch of big words to say that because a witness invoked his 5th amendment rights mid-testimony, the defendant’s sixth amendment rights were not preserved because his counsel didn’t move to strike all his testimony, and the failure to grant a mistrial is only reviewed for abuse of discretion, and in this case the evidence that was blocked by the invocation of the 5th amendment was only collateral impeachment evidence.  The rest of the claims of error, are rejected on plain error review (with a bunch of big words to remind people that Selya is smart.)  However, in this post-Blakely, pre-Booker sentence is vacated because the government agrees that the District Court erred by not first calculating the guideline sentence.

CA6: Possible cert. issue on AEDPA

I don’t know if I am alone on this or not, but I think that Davis v. Straub might be a candidate for a cert. grant.  DoTD explains and comments on it.  In a denial from a petition for rehearing en banc, the dissent points out that this decision essentially suspends habeas, and unconstitutionally applies AEDPA.  Essentially, the petitioner argues that is like illegally imprisoned because at his state trial a witness that could have exonerated him was intimidated into not testifying by the prosecutor and judge (by insinuating that he would be charged with the crime if he did testify.)  Since there was no evidence in the record that the defendant was even marginally of the middle class, he has to stay in jail for life.  The dissent (by Judge Green quoting Judge Merritt) ends with these words: The Great Writ, what Blackstone called “the Bulwark of the British Constitution,” the only writ named in the United States Constitution, is not deserving of such an undistinguished death.

CA6: Round Up the Usual Suspects

The Sixth Circuit reversed the denial of a motion for a new trial based on the theory that the verdict was against the clear weight of the evidence for one appellant who claimed his right to be free from unreasonable seizures was violated.  Mitchell v. Boelcke, No. 04-2219. After receiving a call for assistance in searching for individuals who had robbed a man on the street, who had described the perpetrators as a group of black and white youths wearing white shirts, a police officer saw plaintiff, whom he knew from prior encounters.  Plaintiff was wearing a blue shirt, but the officer ordered him to walk to the scene, where he was identified by the victim.  When plaintiff was acquitted, he sued.  I would like some detail concerning how the officer knew plaintiff.  If he knew him from prior investigations of robberies, a brief detention seems reasonable. 

CA6 to Rule on Whether 911 Calls Are "Testimonial"?

The Sixth Circuit may soon rule on whether a 911 telephone call is testimonial in nature for Crawford Confrontation Clause purposes, as it yesterday granted en banc review in United States v. Arnold, No. 04-5384. Arnold, as originally issued, held that a jury conviction for being a felon in possession of a firearm was against the manifest weight of the evidence. United States v. Arnold, 410 F.3d 895 (6th Cir. 2005). Even though that was dispositive of the matter, Judge Carmen (of the U.S. Court of International Trade) joined by Judge Moore, felt obliged to opine that admission of a 911 telephone call violated both the rules of evidence and the Confrontation Clause. The opinion was later amended in a form that was whittled down to the manifest weight of evidence analysis. See 434 F.3d 396.

An interesting footnote

Read Judge Boyce Martin's concurrence in U.S. v. Martin, No. 04-6428 (6th Cir. Feb. 21, 2006), beginning on page 15, with special attention to footnote 1 on page 16. (Hat tip to Panhandling.)

CA6: Judge Martin on Presumptive Reasonableness

While the First Circuit considers the arguments presented in an en banc session concerning reasonableness review post-Booker, the Sixth Circuit continues its alternative method of reaching for consensus: sniping through glosses that have nothing to do with the case at hand.  See United States v. Foreman, No. 04-2450. Foreman tells us that, whether a Michigan fourth degree fleeing and evading conviction is a crime of violence for criminal history purposes under Sentencing Guideline § 4B1.2(a) is question that cannot be answered categorically, but one that requires case-by-case analysis of items including: the charging document, the written plea agreement, the transcript of plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented. If the facts demonstrate a serious potential risk of physical injury to another, then it is a crime of violence.

Since the guideline range was not properly calculated, one would not think that there would be any reason to mention the presumptive reasonableness of sentences within the sentencing guidelines verses those outside the properly calculated guideline range, but, rather than simply vacating the sentence, Judge Martin decides to tell us what he thinks about reasonableness review of sentences when the guidelines range is properly calculated:

CA6: Sentence Within Guideline Range Presumptively Reasonable

The Sixth Circuit decided a criminal case in which it announced, "We now join several sister circuits [3d, 5th, 7th, 8th] in crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness."  United States v. Williams, No. 05-5416.  Once upon a time, in a pre-Booker world, it was believed that the court could not "reverse a sentence imposed under the Guidelines unless based upon a legal or factual error." United States v. Epley, 52 F.3d 571, 580 (6th Cir. 1995). While the biggest change wrought by Booker is greater sentencing freedom for district court judges, it might mean a bit more work at the appellate level, since sentences within the guideline range can conceivably be proved unreasonable.

CA6 Returns to the Land Before Apprendi

The Sixth Circuit ruled today that a jury, and not the judge, must decide if death results from a federal arson offense, triggering a harsher statutory sentence. Logan v. United States, No. 04-5325. While the petitioner in this case failed to raise the question below, pre-Apprendi cases like Jones v. United States, 526 U.S. 227 (1999), which held that statutory construction requires a jury determination that death resulted from a carjacking, appear to be good law, in spite of Booker/Fanfan.

The sentencing elements are dead! Long live the sentencing elements!