CA1: confronation, ex post facto, and Booker

US v. Molina, No. 03-1625, is an opinion by Judge Selya, in which he uses the words “salmagundi,” “gallimaufry.” and “asseverate” which, which, I am sure, the defendants know the definitions of.  Or something.   It is a bonanza of Confontation Clause, Ex Post Facto, and Booker stuff.

The court finds that although there was no contemporaneous objection to testimony of a drug agent to testify to co-defendant’s confession, thereby, it was argued, violating Bruton.  Despite the lack of a contemporaneous objection, the court concludes that there were mitigating circumstances, because “On the day preceding the introduction of the redacted confession, the district court denied the appellants' motion to sever their trial from Villega's on the basis of Bruton.”  This view of plain error in Bruton issues apparently creates a split with US States v. Jobe, 101 F.3d 1046 (5th Cir. 1996).  Despite this victory, when the court reviews Bruton issue, it concludes that the District Court got it right because the actual testimony wasn’t that incriminating.  But, the court also rejects a request for a new trial because of the testimony of the agent.  However, following United States v. Richardson, 418 U.S. 166 (1974), GRANTS the motion for the new trial because the prosecutor essentially connected the dots for the jury in the areas that the agent had (quite rightly) eliminated from his testimony.

This may be some indication that the First is paying some attention to professional responsibility issues. 

Next, the court concludes that the court prevented a defendant from cross-examining a witness about what amounts to his principle defense (e.g. what other things a witness had done), and concludes that this, too, is not harmless (but this finding of harmlessness might be cumulative with the other parts).

Then, the court finds that under the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, the defendants are right: the “conspiracy to take a foreign national” didn’t include a conspiracy provision until a year later (see 18 U.S.C. § 1203(a), Pub. L. 104-132, § 723, 110 Stat. 1214, 1300 (1996)), but the remedy is just to reduce the sentence to the 5-year minimum in 18 U.S.C. § 371. 
The court rejects sufficiency of evidence arguments, improper (denial of) severance arguments, speedy trial arguments, and leaves IAC arguments to habeas.

The Booker argument fails because “we have no reason to believe that the district court would have imposed a more lenient sentence under an advisory guidelines regime.”

It also analyzes the “leadship” enhancements found in USSG §2B3.1(c), but concludes that it isn’t worth going into.

See PRACDL coverage here.

Comments

[Anonymouse]

I love "salmagundi" and will use it whenever I next get the chance.

[TomFreeland]

Salmagundi is the title of a Faulkner collection. That and the fact that I could imagine Faulkner suggesting that a character "asseverated" made me wonder if there was some sort of Faulkner subtext operating here, but on second thought I don't think it's that sort of gallimaufry.

Or something like that.

[S.cotus]

Of course, if any law student uses it, he will be condemned, and if any associate uses it, he will be laughed at. Only when you are an appellate judges who docket is made up most of people who did not speak your language as nearly as well as you do, can you use words like that.