CA1: Hobbs act conviction affirms, indictments not duplicative, and below guidelines sentence was too low

US v. D'Amico, Nos. 05-1468, 05-1573 is an appeal of a Hobbs Act convince, and cross-appeal of the sentence in a political corruption case.  The defendant loses on both.  Selya, thankfully, limits the use of words that he knows that people will have to look up.  [Nevermind, Howard wrote this.  No wonder why I can understand it.]

The defendant argues that the indictment was duplicitous because it charged “one count of interfering and attempting to interfere with interstate commerce through extortion.”  As we know from law school, a completed crime means there is no attempted crime.  Distinguishing the 9th Circuit’s approach in “United States v. Ramirez-Martinez, 273 F.3d 903, 913-14 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc) [(“transporting and attempting to transport undocumented aliens”)]”, the first holds that in the case of extortion under the Hobbs Act all the elements of attempted extortion are elements of a lesser-included crime.  Selya attempts some analysis by trying to explain that “one of the purposes of the prohibition against duplicitous indictments is to guard against conviction without a unanimous jury verdict” but nevertheless the law isn’t clear whether juror unanimity is required as to the factual theory a defendant is convicted of, but concludes that since he didn’t seek a unanimity instruction at trial, and doesn’t really raise it on appeal.  But, it seems that this is an open issue in the First.

As to an argument that there was no quid-pro-quo, Selya explains how our system of political is great because candidates have to raise money and make promises.  But, somehow, the court finds enough in the record to show a quid pro quo. This is really bad, right?  Almost as bad as nominating judges, with the “wink and nod” promise that they will make it almost impossible for raped girls to get abortions.  Selya does note that jury instructions constitute the law of the case.  So, file that away.

As usual, the argument that there was no connection to interstate commerce was affirmed.  Likewise, as usual, the First gives the green light to misstatements by the prosecutor in closing argument.  So the message to prosecutors is clear: make misstatements look like an accident, and then say “oops” and wait for a curative instruction.  All convictions will be preserved.

And, to bring the point home, the First vacates the below-GSR sentence (on the grounds that he had been a good city official), the First says that charity really doesn’t matter too much, and specifically adopts the 7th’s approach.   DotD comments here.

Comments

[Alex]

Didn't Howard write this opinion?

[S. COTUS]

Thanks for the catch. Yes he did. Now I understand why I can understand it.