Appellate Law & Practice

CA1: okay to say prosecution doesn't have to disprove "other guy did it" theory

Farley v. Bissonnette, No. 08-1094 (10/8/08) denies a petition for a writ of habeas corpus.  The first issue was whether "the trial judge's instruction to the jury that the prosecution 'does not have the burden of proving that no one else may have committed the murder' [was] an error that was contrary to clearly established Supreme Court precedent as stated in In re Winship, 397 U.S. 358 (1970)."  The First concludes “Thus, where the defense attempts to cast the blame on someone other than the defendant, it is not unusual for the court to remind the jury that the government's burden is to show that the defendant is guilty--not that the other person whom the defendant seeks to blame is innocent.”  But really, we all know what is going on: the trial court thinks that the defendant is guilty and wants to make sure the defendant goes away.

The second issue is whether "the state court's decision that the trial judge's limitation of the petitioner's cross-examination of Ronald James, though error, was harmless beyond a reasonable doubt [was] an unreasonable application of clearly established Supreme Court precedent, namely, Delaware v. Van Arsdall, 475 U.S. 673 (1986)."  The First seems to just say that it was okay that this was considered harmless error.  Whatever.

CA1: a bad, unpublished case on tax evasion and privileged materials

US v. Schussel, No. 07-2095 (8/29/08) (unpublished).  Again, why the hell was this unpublished.  This is freakin’ major case in criminal and tax practice.  What the hell is the First thinking?  Are they trying to hide something?  Or are they trying to avoid writing a “precedential” case on tax privilege issues, because there are other ones in the pipeline which are not criminal -- yet.  Essentially this is what happens when you think you can hide assets in Bermuda and hope that it all turns out okay in the morning.  I don’t have too much sympathy for this kind of person.  He also fabricated documents, and tried to replace computerized records.  I know a couple of the actors in this case (and they luckily they are documented as behaving ethically as they always do).  However, this case demonstrates the principles in tax practice known as “what goes around comes around.” 

In October 2001, Darlene Flint, who had worked as Gomes’ secretary for 18 years, walked into the IRS office in Stoneham, Massachusetts, with a box of DCI records that included the Bermuda account records.  This disclosure triggered a criminal investigation of DCI and its employees

It also demonstrates why certain kinds of tax clients are really a bitch to deal with, and what sort of trouble tax lawyers flirt with.  Anyway, back to that law stuff.

The biggest problem with this opinion is that the First seems not to understand that there is a difference between rules of professional responsibility and privilege.  Rules of professional responsibility generally govern the relationship between the client and the lawyer.  Usually they are written to make it easier to represent a client, and in the case of privileges, many rules reflect our common-law understanding of such privileges.  But these are different issues.  The First seems to flip back and forth between privileges and rules of professional responsibility to reach the result it wants.  This makes this one of the worst opinions of the year.

Looking at the actual holdings... oh wait.  They appear below the fold.

CA1: extensive discussion of RICO and structural characteristics of constructive amendment

US v. Brandao, No. 07-1215 (8/21/08).  This case has the phrase “acknowledging the able advocacy by defense counsel.”  We all know what this means.  The client is going down.  To jail.  Well, he was poor, and there was a split in the circuits.  Anyway, because I am on my way home from China, I don't have the time to give a good analysis of this, so whoever wrote this opinion gets a pass.

Anyway, this case hits on two of the difficult issues in criminal law.  The First, resolves them in favor of the government. 

Of general interest is the issue of whether the government can avoid a constructive indictment argument via notice found in the jury instructions.  Alas, this is on plain error review.  This is unpreserved, so the First says that it is not a structural defect (the Fourth, which never takes these things seriously, holds that it is is structural).  The First says it isn't structural, because, well, the Supreme Court (in the First's mind) doesn't want to create new structural defects.  So, whatever.

In a RICO indictment, there is (or should be) a "relatedness," and "pattern of racketeering activity" element(s).  So, at some level when the government goes after the small fish, they have to prove that they have some knowledge of what is really going on.  Anyway, the First says that the government proved its case.  But, in looking at the facts it seems rather thin.  Anyway, anyone that defends these cases is going to have to parse through the facts here, as the opinion reads more like something from a trial court.  But, whatever, it as a gang case.  The court distinguishes Reves v. Ernst & Young, 507 U.S. 170 (1993), which it says deals with “outsiders” (i.e. the  kind of people that have written contracts) as opposed to “insiders.” 

As usual, the First gives a green light to the prosecutor's closing arguments.  Same deal with Brady material.

CA1: 85 pages of RICO

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.

CA1: no cancellation of removal for possession of small amounts of pot

Julce v. Mukasey, No. 07-2362 (6/20/08).  The First lays out the issue like so:

The petitioner raises a new question for this court involving the interplay between the immigration law's definition of aggravated felons, who are ineligible for cancellation of removal, and the federal criminal statutory exception in 21 U.S.C. § 841(b)(4) for reducing certain felony marijuana offenses from felonies to misdemeanor status.   

I put more stuff down below.

CA1: plea was valid and entrapment fails

US v. Otero, No. 07-1555 holds that in a “Rule 11" (i.e. a change of plea) proceeding, a defendant was “aware of the intent element of the drug-trafficking offense” even though the judge didn’t read it out loud.  He raises an “entrapment” argument, but because he plead guilty and there was no real chance that he would succeed on that defense, that fails, too.

CA1: Selya and selective prosecution

US v. Lewis, No. 07-1249.  Okay, this is a selective prosecution appeal.  Since Selya writes it and the defendant is a black Muslim accused of fairly innocuous false statements on the forms one must fill out when one gets a gun, who also might have gone to some countries with less than sterling reputations we know where it is going.  In the past three years nobody else had been prosecuted for this in the Disitrct, and the USAO seems (this isn't clear) to have deviated from its normal practice.  And, as Selya always does when send someone to jail, he used big words so that he can seem really smart.

Because it is pretty obvious that Selya isn’t take the thing seriously, I find it difficult to take anything that he says seriously.  But, as any good lawyer must do, he must try pretend that the court has some coherent theory of justice interwoven within its rhetoric.  To give you an idea of where Selya is coming from look at this choice line:

We live in an era in which the incidence of violent crime is high and terrorism is a persistent threat. In that climate, a false statement in a firearms application raises a modicum of concern, and the level of concern escalates almost exponentially as the number of weapons and the number of false statements grow.

This case comes to the First on an appeal from a denial of a motion for discovery in aid of his selective prosecution argument.

Keep reading. 

CA1: Breaking news. First Affirms “Survivor” conviction

US v. Hatch, No. 06-1902.  Okay, this is the appeal of that guy that won “Survivor” and didn’t pay taxes on his winnings.  He was convicted of three counts of filing false tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1).  He signed a contract which said that he would pay all taxes on his winning in this stupid show.  He later made some other money by appearing on some pilots of even stupider TV shows. 

Anyway, stepping back from the stupidity of popular culture, let’s take a look at the live issues.

He wanted to argue that the procedures of the show were cheating and feeding the contestants.  The producers, he claims, in exchange for his silence on the issue, promised to pay his taxes and therefore under Cheek v. United States, 498 U.S. 192 (1991) he wasn’t willfully failing to pay his taxes.  But, nobody actually testified to such a promise, and it doesn’t seem like he was actually prevented from offering such testimony, though the actual rulings that the District Court made in the heat of the trial seemed to come fast and furious during direct, so maybe someone misunderstand what doors were open to what testimony.

The First also says that the “expert” testimony of IRS agents was error.  But the First says that they were really “fact” witnesses.  The First says that objections were either waived or not plain error. 

The District Court has precluded certain testimony from the defendant’s accountant, but these seem to be on relevance grounds. 

On the other side, he argued that the District Court improperly imposed limits on his cross.  The First bashes counsel by saying that some of the proposed questions were “incoherent.”  The First also says that his cross-examination just wasn’t restricted. 

And, for all the sentencing buffs out there: a perjury enhancement was proper, even though he was acquitted of a perjury count.  The First says the issue (like the amount of loss) isn’t developed.

CA9: Expert witness on mens rea of tax protester (and contempt)

The Ninth Circuit blog points to United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007).  The defendant is one of those “crazy” tax protesters.  Now, most of us refer to tax protesters as “crazy” in the sense that “they behave in a way that nobody I want to associate with behaves, and they have ideas that are so far outside my reality that I don’t take them seriously.”  But, this guy is different.  His lawyers actually think that he is crazy.  A shrink writes a report which reads ““[h]is behavior is driven by a mental disorder as  opposed to criminal motivation . . . Although it is true Mr. Cohen was not delusional or psychotic and was in possession of basic mental faculties, his will was in the service of irrational beliefs as a result of narcissistic personality disorder.”  The Ninth says that this testimony could have helped the trier of fact, because the expert was proposing to testify that “...once Cohen adopted [Irwin] Schiff’s views, Cohen would not change his mind.... [and] a narcissistic personality disorder like Cohen’s can cause a person to continue to believe something to be true despite overwhelming evidence of its patent absurdity.”  The Ninth expresses some hesitation about allowing in all of the proposed testimony, because some of it might really be invading the province of the jury to determine mens rea, but it says that weeding that stuff out is for the District Court. 

Anyway, the guy did lots of things to annoy the District Judge.  He was held in contempt (fifteen times), but the judge “failed to file contempt orders as required by Federal Rule of Criminal Procedure 42(b).”  The Ninth says the remedy for this is to remand, but “On remand, the district court may reinstate the contempt convictions and resentence him so long as it does not increase the individual punishments for any of the fifteen convictions.”  It also mentions a mathematical error. The Ninth says, however, that the District Court’s procedure (of doubling the sanction for each time he did something contemptuous) doesn’t raise due process problems, because it happened immediately after the offense occurred, and sentencing him post-trial for some of the contempts does not run afoul of Taylor v. Hayes, 418 US 488 (1974).  Each sentence was less than six months, so there was no jury-trial problem.

The post ends with this: 

Cohen has sparked much interest among bloggers. For a taste of a law prof's sour grapes (he was on the government's early briefing), see Brian Galle's comments here. More mens rea analysis (and some interesting gossip on other details of the case) can be found here. 

CA1: More convictions for drug-running on the high seas

U.S. v. Rodríguez-Durán, et al. Nos. 06-1400, 06-1401, 06-1402, 06-1403, 06-1404, 06-1405, 06-1406, 06-1407, 06-1408.  This case affirms the conviction of nine seamen that were caught with a bunch of drugs off the coast of South America near Curaçao.  Of note is the fact that the District Court denied continuances and went to trial within forty days from the indictment. 

There are a number of issues here.  I think the First is bending because a remand would call numerous convictions and a lot of work into question.  But, whatever.  Anyway, below the fold you can find discussion of:

1. Motions for a continuance;
2. non-compelled appearance in prison garb;
3. courtroom seating;
4. Booker reasonableness;
5. safety valve provisions;
6. duress;
7. how the USCG boards foreign ships;
8. Crawford and Bruton issues; and
9. Maritime Drug Law Enforcement Act ("MDLEA") an conspiracy charges.

Read on.  Happy Thanksgiving.  Turkey is murder.