US v. Mangual-Garcia, Nos. 05-2275, 05-2414. The First circuit holds that it wasn’t error for the District Court to allow evidence of a separate conspiracy – with a curative instruction – in drug trafficking case. The defendant argues that this really was Brady material, but the First says he doesn’t really make a good enough showing as to why it was exculpatory. Judge Dyk, of the Federal Circuit, blame whatever ill occurred on the lawyers for the defendant, not the government. Further, even if the prosecutor’s actions were misconduct, the government did well enough to send these people to jail. And, as usual curative instructions are considered good enough.
Read on. Or something. Every click brings us closer to a cure.
The First also explains that a determination under United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977), is a determination that a statement was found, by a preponderance, to have been part of a conspiracy. But, such decisions must be made at the close of evidence, and the best a defendant can hope for is a curative instruction, which, we all know will be ignored. The First says that while it is error to fail to make a “Petrozziello determination” at the close of evidence, it is harmless.
Further, there was no violation under Napue v. Illinois, 360 U.S. 264 (1959). The defendant argues that not only did the government allow the defendant to testify falsely, but used such false testimony in his closing argument. In this case the witness didn’t know that the government didn’t intend to prosecute him (which was revealed before his testimony), but he said ““because of my testimony, I could also be put in jail.” But then there was no objection, and the First concludes that it must have been strategic. Ha! They say. It is waived.
No plain error is found due to a failure to contemporaneously object to witness insinuations about a much larger conspiracy, when this really was a small one.
As usual, claims of prosecutorial misconduct in closing arguments are not taken seriously by the First. The prosecutor made a strange argument about constructive possession to the jury, but the First doesn’t really discuss how it is or is not misconduct – or even misstatement of the law. Likewise, and more startling, the government appears to have commented on a defense failure to produce evidence, but the First says that it was proper comment in rebuttal, and searches Westlaw for the “invited reply” doctrine.
All the sentencing arguments (regarding roles, etc.) are brushed off. The First finds it was not plain error for the District Court to not “specifically identify some discrete aspect of the defendant’s behavior and link that aspect to the goals of sentencing” as is required under [18 U.S.C.] § 3553(c)(1). The First then goes on to do the District Court’s homework, and another person goes to jail.
This opinion is posted twice for the two defendants. They appear to be identical, but just in case, the 2d one is here.
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