US v. DeCologero, Nos. 06-1274, 06-2390, 06-2391, 06-2392, 06-2569, 07-1086 . This is a pretty violent RICO case. I am not really going to do it justice. It has dismemberments. The First takes many pages to catalogue the facts, which include an attempted forced overdose of heroin, and a trip to Home Depot.
The most interesting issue, I think is a gang-land prosecutorial misconduct issue:
Pavone alleges that an old acquaintance, John Dana, and his colleague Wayne David Collins approached him around the time of his indictment and offered to hire an attorney on his behalf. That attorney, John Cicilline, did briefly take over Pavone's case. According to Pavone, Collins claimed to have a special, preferential relationship with the FBI, and Dana and Cicilline repeatedly asked Pavone to cooperate with the government. After his initial detention hearing, Pavone was approached by another inmate, Arlindo Dossantos, who warned Pavone that Collins and Dana were FBI informants who hired attorneys for criminal defendants in order to obtain confidential information that they could then pass on to the government. Pavone confronted Cicilline, Cicilline withdrew as counsel, and Pavone's former counsel was reappointed.
The government submitted affidavits saying that they didn’t do anything wrong, and the District Court believed that the government had not received any confidential information. The First scrambles to save this, but saying that just because the government intrudes into an attorney-client relationship, the Sixth isn’t violated, so all he needs to do is make a “prima facie” showing.
The First says that it wasn’t an abuse of discretion to deny a motion to sever. Even though it acknowledges that RICO cases usually involve quite a bit of inter-defendant prejudice, the First says it isn’t going anywhere and even goes to say “prejudice in this context ‘means more than just a better chance of acquittal at a separate trial.’” There is something decidedly unAmerican about such remarks, but I can’t put my finger on it. Even though some of the defenses were antagonistic to each other, the First says that there wasn’t really “substantial incompatibility.” The bigger issue, as I see it, is that one of the defendants pursued a defense which involved admitting his own “criminality.” He was also on trial for a gruesome murder, and engaged in some courtroom antics. But, the First says, that any “spillover” isn’t enough to show prejudice. And, of course, the argument that the jury might be confused, goes nowhere, too, even though they all have similar names.
The defendants argue that the judge’s criticisms of the attorneys deprived them of a fair trial. The First says some nice things about the judge. But, what is interesting is that 1) the judge sustained a lot of objections to “leading” questions; 2) the judge called many valid objections “picky”; 3) the judge told the jury that he was exercising his judgment; and 4) the judge then, on his own motion, found the next question leading. So, the First says that the judge was really criticizing the government. But, of course, judge seems to have termed various questions “argumentative.”
There are a lot of rulings by the judge that are deeply disturbing. But, the First gives it a pass. For example, the judge did the old “move it along” trick (in order, it seems, to avoid ruling on things), and the judge said that cross-examination should take thirty seconds.
There are a number of hearsay objections, but I can’t say that the First takes any of them that seriously.
Oh, and a request for “compulsory process” isn’t really denied if it isn’t “expedited.”
Maybe I am just too tired to go on with this, but I should note that there are substantive reasonableness in sentencing issues, together with double jeopardy issues. All of them are affirmed by the District Court.
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