CA1: forfeitures, sentencing, publicity, and discretion

US v. Misla-Aldarondo, No. 03-2073, 04-1424 (3/2/07).  This was a high profile public corruption case in Puerto Rico.  The highness of its profile gives rise of most of the objections that the former speaker of the Puerto Rican house of representatives raises.  Puerto Rico. The highness of its profile gives rise of most of the objections that the former speaker of the Puerto Rican house of representatives raises.

Keep reading for all your publicity needs.

Be forewarned, this is not a good opinion. It is not good because the First does painfully little legal analysis and essentially says everything is an “abuse of discretion” without explaining what that term means.

The defendant had asked for a 90-day continuance to let the hubbub die down, as well as a transfer to the Virgin Islands.  (Note: I am not sure whether a District Court could transfer a case to the U.S.V.I. or at least whether such a conviction would be valid, because this would mean that the case would likely be heard by an Article IV judge.  Puerto Rico’s judges have life tenure, but seem to be in Article III, but need not be.)  He was also denied expanded voir dire and more peremptory strikes.  Anyway, the court reviews everything for “abuse of discretion” which, as we know, is codeword for, “not putting a lot of thought into it.”  For some judges think that “abuse of discretion” means “absolute discretion” whereas others think it simply refers to the most minute factual findings that a District Court judge could make coupled with the law which is reviewed, de novo, anyway.

Anyhow, the court deals with the change of venue issue by concluding that the caselaw requires a change of venue only in extreme cases, and concludes that a 15-per-cent-for-cause disqualification rate is too low to presume prejudice.  (This actually seems like a workable rule.)  But then the First gets flaky, and says that he could have prevailed by providing the court with evidence of the publicity (which he did), coupled with some sort of evidence that the judge abused her discretion “given the success of the voir dire.”) 

Because the First figured out a way to approve of the denial of the change of venue, the First quickly dispatches with the denial of the continuance.

The issues regarding expanded voir dire are somewhat opaque.  The First blames the defendant for being confusing.  Whatever it is, the First finds no abuse of discretion. 

And the First concludes that he lacks a substantive argument as to why he should have gotten more preemptory challenges. 

As is common the government failed to disclose a conviction of a cooperating witness in a timely manner.  But these deadlines are flexible.  And the First rushes to conclude that the delayed disclosure of impeachment material had no effect. 

As to more substantive challenges, the First does no better.  It holds that a bunch of things are harmless error, such as 1) a clerical error in the indictment (the indictment said “and” and the government “proved” “or.”  His conviction for conspiracy to money launder, the First finds, is supported by the evidence, and a conviction for witness tampering is affirmed because, while being secretly recorded, he tried to “head off the possibility of testimony in an "official proceeding."”

As to sentencing, the first passes over interesting questions relating to his involvement with a bribe as well as the amount of a fine with a quick “no abuse of discretion.”  It also denies a Booker remand, because, well, his sentence was in the middle of the guidelines, and he didn’t raise any other arguments.

Finally, the court holds that forfeiture of “substitute” funds (rather than specific goods) need not be from specific proceeds.  But – and there is the interesting part – the First notes that the government might have trouble enforcing the forfeiture judgment.  The First concludes “We leave for another day the question of whether, in seeking to seize assets to satisfy that judgment, the government is required to do so under the substitute assets provisions of [21 U.S.C. § 853], or whether it may use the judgment to attach assets just like any other judgment creditor could.”