Appellate Law & Practice

CA1: Drinking and driving isn’t accepting responsibility

U.S. v. Jordan, No. 08-1432 (12/5/08). The defendant committed some criminal acts while out on bail – namely drinking and driving. At sentencing, the District Court denied an offense level reduction under § 3E1.1 based on his putative acceptance of responsibility. Selya sees no problem with it, because, well, the defendant “didn’t care” about his bail conditions which includes not being a criminal, and Selya points to the fact that the defendant didn’t cease all criminal activity but continued to act like a poor person and went into bars with his buddies. In the future I would advise his ilk to get wasted at the firm picnic and have the office manager call a car service.

For the opposing view, see The Pietasters.

CA1: proper punishment for a stalker that refused to retain a lawyer before not paying taxes

USA v. Steirhoff, 08-1183.  Selya tries to be dramatic.  He says “The tale of how the stalker became the stalked follows.”  Anyway, the defendant seems like a bad guy because he talked to the police without a lawyer.  And he had about $100,000 in cash lying around.  A true American would have the money in CDs or municipal bonds, and only terrorists and furries talk to the police without lawyers.  Just like people that try and avoid taxation on their interest income, this defendant said that he didn’t pay taxes and didn’t trust banks.  I hate him already. 

Anyway, the state called the IRS, and the IRS started investigating him and found out that he wasn’t pulling his weight tax-wise. 

Anyway, the legal issues are fairly straight-forward, especially when the defendant is a simpleton.  This is absolutely no evidence that he retained a tax lawyer, and, as I said he is the kind of America-hating person that talks to the cops and consents to a search without a lawyer.

So, it should come as no surprise that a search of a briefcase is held to be within the scope of the consent this idiot gave the police.  If he was a real American he would not have given the consent, and certainly not on boilerplate forms that say “letters, papers, or other property."  The defendant meekly asserted that he meant to consent only to a search of part of his computer for poetry.  Ha ha.  No cop wants to look for poetry.  All they want are looking for his guns, pr0n and cash.  Obviously, because Selya sees that this guy isn’t really acting like an American, he sides with the cops.  As he usually does.  He adds, “A police officer is not required to take a suspect's statements concerning the whereabouts of incriminating evidence at face value.”  See, if the defendant was a true American he would have not made a statement.

He also makes some BS argument that he wasn’t subject to the tax code.  Obviously this fails.  There was no evidence that he had retained a law firm to write him an opinion letter.

There is an interesting Cheek issue regarding “willfullness.”  And, in this case, since the defendant had a bunch of aliases, it was enough to infer that he was willfully not paying taxes. 

Also, the Selya says that a “summary witness” was okay.  Selya let’s it pass by saying that the witness was just adding numbers up.

And, after affirming the sentence, Selya sends the guy that couldn’t be bothered to retain counsel until after he was arrested to jail by saying “For aught that appears, the defendant was fairly tried, justly convicted, and lawfully sentenced.”

CA1: Plea waiver enforceable

US v. Acosta-Roman, Nos. 07-1238, 07-1239 dismisses an appeal based on an appeal waiver.  The defendant argued that because an enhancement wasn’t a condition of the agreement, that the issue can still be raised.  But, the First looks at the agreement, and says that there was an agreement to litigate that issue below, and therefore, because the court adhered to the boundaries of the expected sentences, all is well. 

CA1: laches and holocaust painting case

Vineberg v. Bissonnette, No. 08-1136.  This is a holocaust case.  The Nazis forced someone to give up a painting because they were not German enough (strangely this sounds like some of the rhetoric I heard in the last election).  Eventually the painting made its way to the states and a dispute arose between the successors in interest to the original owner and the current owner. 

The only issue is whether the defendant was entitled to a laches defense.  Applying Rhode Island law, the First agrees that the successors pursued their claim diligently, and the possessors were not prejudiced.

The First says that ten months for discovery in this fairly simple case is adequate.

CA1: cops can take your drivers’ license without seizing you

US v. Ford, No. 07-2613 upholds a ruling denying a motion to suppress a gun.  Some cops leaned out the window and asked a poor person some questions and took his drivers’ license.  The poor person raised his hands.  He was not represented by counsel at the time and therefore probably did something wrong.  The First say that this encounter wasn’t a seizure because the cops were just asking general questions without turning on their lights.  The First says that “Raised hands” are a sign of protest as well. 

Anyway, taking someone’s drivers’ license and running it though the computer isn’t a seizure, and conducts some balancing test which somehow always goes against poor people. 

CA1: Fifteen year mandatory minimum for guy in wheelchair trying to produce child pr0n okay

US v. Polk, No. 07-2425 asks the question of whether the “ifteen-year mandatory minimum term of imprisonment under 18 U.S.C. § 2251(e)” violates the Eighth.  Selya writes the opinion so you can tell where it is going.  This is a pretty typical “seduction of cop posing as teenage girl” case.  The strange wrinkle is that the defendant was in a wheelchair and argues that he is harmless.  He was sentenced above the mandatory minimum, but the First explains that “The possibility exists that, but for the mandatory minimum, the GSR would have been more modest and the defendant's sentence would, accordingly, have been less.”

Selya says that “stern” penalties are acceptable.  Then Selya does some non-judging and holds that “Given the deference that courts owe to legislative judgments in the area of crime and punishment, it is predictable that most efforts to demonstrate gross disproportionality will fail.”  Whatever.  Anyway, Selya says that the sentence isn’t grossly disproportionate because, “In Congress's view — and that is the view that matters most — the production of child pornography is a profoundly serious matter. That is a reasonable value judgment, well within Congress's prerogative to make. [United States v. Saccoccia, 58 F.3d 754, 788 (1st Cir. 1995]. Therefore, Congress was entitled to punish the offense heavily.”  Moreover, the fact that it was an “attempt” doesn’t matter.

CA1: speedy trial act and conspiracy counts

US v. Grullon. No. 07-1982 (10/24/08).  In this case, the First turns back a sufficiency challenge even though all the testimony came from the defendant’s “confederates.”  Also, the first says that interpreting “drug talk” to be, in fact “drug talk” was for the jury.

But, there is an actual legal issue in there.  There was a drug transaction that was dismissed for violation of the Speedy Trial Act (because an indictment wasn’t filed quickly enough).  But the government wanted to rely on that transaction as part of the conspiracy charge.  The First concludes “the statute says nothing about barring the institution of a new charge for a different offense based on some or all of the underlying transaction and certainly nothing about barring the use of pertinent evidence of the dismissed charge so far as it might prove the new charge.” 

At the end of it, is an interesting prosecutorial misconduct issue.  The AUSA said that jurors should "follow [their] oath ... [and] find the defendant guilty . . . because it is the right thing to do."  The First “previously told prosecutors not to use such language.”  But, the First says that this was probably harmless, so the message is clear: prosecutors are free to use such language.  So, a green light is given.

Also, some anti-lawyer jokes were found in the jury room.  No evidentiary hearing was held on what the jurors were thinking.  The First says that this was okay. 

CA1: some – but not all – cops are abusing trust by buying drugs

US v. Arroyo, No. 07-2423. An ex-cop got busted for cocaine and ecstasy possession (actually, it seems he was a cop at the time he was busted, but the opinion is not clear on that).  He was charged with conspiracy.  At sentencing, the judge departed upwards because he USED to be a cop and “the district court plausibly found that in this instance the very bad example set by having a police officer buying and making available illegal drugs enhanced the seriousness of the crime.”  The First points to the fac that “Arroyo had in fact worn his uniform for some of the purchases, and some of those who obtained drugs from him socially knew his position and could have deemed his furnishing of the drugs as trivializing the seriousness of the offense--enhancing a risk already present where use is recreational and liable to be brushed off as nothing to worry about.”  So, the First rejects the idea that the District Court was automatically giving cops that get caught using drugs a higher sentence.  The first says “Yet the possibility that a fact or factor like occupation cuts one way in one case and a different way in another means nothing, so long as a different context makes that sensible.”

The First says there isn’t much of a double jeopardy argument since the sentences were run concurrently.  The government seems to have won part of the double jeopardy argument by concluding that two conspiracies were a “close call” but because there was a difference in WHO the conspirators were, this wasn’t a problem.

CA1: no contempt for attorney that disclosed grand jury materials that he provided

In Re: Grand Jury (Islamic Investment Company of the Gulf (Bahamas) Limited), No. 07-2353 (10/10/08 -- reissued for obvious reasons).  This is an interesting case.  Although some Republicans are trying to scare us with the use of the word “Islamic” or “Muslim” (some of the people writing these applause lines are lawyers who have Muslim friends but just like trolling the “lay shit”).  So, to all you Muslims out there, I say this: don’t take it personally.  Americans hate people more on the basis of their class than religion.  For some reason, everyone likes Bahamians.  Anyway, where was I?

Oh, this case is interesting because it involves the power of a District Court to hold someone in contempt.  Essentially, IICG was the subject of grand jury proceedings.  The AUSA started communicating with a lawyer for a former employer that had sued them, and the lawyer told the AUSA about the state court proceedings and gave the AUSA copies of various discovery orders and pleadings.  But the lawyer didn’t stop there.  He gave the documents to various members of the press.  IICG pointed to the local rule that said that everything provided to the grand jury is presumptively under seal, and said that the lawyer should be held in contempt.  The District Court refused (in a long opinion).  IICG says that the trial court didn’t understand that it had the inherent power to hold the lawyer in contempt.  (The District Court concluded that the lawyer wasn’t subject to any of the local rules regarding grand jury secrecy.)

The First says that the lawyer didn’t know that the documents he provided were sealed in the first place, and besides this lawyer isn’t a member of the Massachusetts bar and lacks a reason to know that he was violating a rule.

CA1: tax blindness instruction

US v. Anthony, No. 07-1670.  Oh god, this is sad.  This guy was a Coastie for two decades.  Then he decided he didn’t need to pay taxes.  On the one hand, I hate tax cheats.  On the other hand, I can’t help feeling sorry for the guy.  He was convicted under 26 U.S.C. § 7201.  The District Court gave a “willful blindness” instruction.  There is a good discussion of the law here, but it concludes that there was no error.  Essentially, there was evidence that he “willfully” blinded himself to the state of current law, the government was entitled to such an instruction.  The defendant also loses on his bid to have a bunch of “statutes” admitted, though he was permitted to read summaries to prove up his subjective belief.  Fine by the First.   

All the sentencing errors are affirmed.  However, I should note that the District Court did rely on a guideline that says that a sentence should instill respect for a duty to pay taxes.