US v. Rivera-Hernandez, No. 06-1355 affirms the conviction and sentence for money laundering under 19 U.S.C. § 1957(a) in a public corruption case where the defendant ran Puerto Rico’s juvenile justice agency. The sufficiency argument fails, it seems, because they didn’t really make one. That is, the First says they are trying to reweigh evidence. But, I suspect that they had a bit more of a sophisticated argument.
Secondly, the First holds that “This circuit has specifically upheld money-laundering convictions in cases where there is an actual acquittal of the underlying predicate offense.” So, even if acquitted on an extortion, one could still be acquitted for laundering the money, and the court need only look at whether there is “substantial evidence.”
There is more where that came from....
Third, the court deals with a hearsay problem involving fraudulent invoices. Apparently, the defendant wanted a statement to come in explaining certain invoices that “he was providing consulting services to [Cobián], but since he was still a public official and could not hold other employment, payment would be effected through Multi-Equipment.” He argued that this comes in under the state of mind exception (but this didn’t show, according to the First, his “present” stat of mind since there is a contemporaneousness requirement), that it comes in under the co-conspirator exception (but, in fact, was offered “against” his position at trial.) I never thought of this? Does this mean that a defendant can never invoke the co-conspirator exception to introduce exculpatory hearsay. This doesn’t seem right.
There is also a claim of prosecutorial misconduct. Because the First has a policy of never taking these issues too seriously, they are rejected. Sure, harsh words are used, but this gives the green light to everything that the prosecutor is accused of doing.
So, let’s be clear what sort of conduct the First gives the green light to.
During opening statements, the defendant’s lawyer gave a general biography of the defendant. The prosecutor said, “Your Honor, may I object unless the defendant is going to testify?” The First figures that “we do not think the jury understood the objection to be a comment on Rivera-Hernández's failure to testify.” So, the message is clear: if an opening statement includes a general biography, prosecutors are free to leap to their feet and dare defendants to testify! Sure, the First calls it a “glancing brush rather than a blow against the privilege” but this opinion encourages and applauds this kind of speaking objection made before the jury. Law schools should start teaching it. Moreover, any NITA instructor that doesn’t explain why this is permissible in the First would be negligent.
Some Brady claims fail because the defendant couldn’t establish prejudice.
Apparently the prosecutor set up a meeting between two cooperating witnesses, and told one of them that their memory of certain bribes was “light.” Rather than explain whether this is a good practice or not, the First says that the defendant didn’t cite any caselaw that would such behavior is bad and that the remedy is a new trial. So, the First is saying that this coaching behavior is to be encouraged.
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