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: 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: crack retroactivity doesn’t go below mandatory minimums

US v. Ganun, 08-1416.  Seems to be the first Crack-retroactivity appeal.  This guy, appearing pro se, wants to get a reduction below the statutory mandatory minimum.  He loses.

CA1: forfeiture remand in light of Santos and excessive fines clause

US v. Levesque, No. 08-1344.  This is a three million dollar forfeiture judgment against a drug mule.  The First says that yes, indeed, 21 U.S.C. § 853 authorizes money judgments.  Next, the First agrees with the parties that in light of the Supreme Court's decision in United States v. Santos, the District Court should figure out whether Santos requires that such forfeiture orders be based on "proceeds" or "receipts."

Then the First gets all intellectual about the excessive fines claus, and concludes "the purpose of imposing a forfeiture as a money judgment is to "permit[] the government to collect on the forfeiture order in the same way that a successful plaintiff collects a money judgment from a civil defendant. Thus, even if the defendant does not have sufficient funds to cover the forfeiture at the time of the conviction, the government may seize future assets to satisfy the order."

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: 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.

CA1: no reasonable expectation of privacy in unpaid storage locker

US v. Lnu, Nos. 07-1780, 07-2020 (10/10/08).  This is a social security card fraud case.  The defendant was convicted under 42 U.S.C. § 408(a)(6).  However, the underlying question revolves around whether the cops could search a storage locker that he had not made payments upon.  The First focuses on the fact that the owner of the self-storage place had a lien on the property under state law.

The First says that some parts of the closing argument were not misconduct because, on the facts, they were supported by the evidence.  Likewise, the defendant claims that he was denied his right to testify but testimony from his lawyer says that he was so adequately informed.

CA1: Judge Dyk sides with defendants in Miranda case

US v. Jackson, No. 07-2510 (10/8/08).  This is strange.  Judge Dyk of the Federal Circuit sides with a defendant.  Usually when he is sitting by designation he rubber-stamps the District Court, sending someone to jail for a long time.  Anyway, let’s take a look at what is so bad.

It is a Miranda case.  The District Court found that the defendant was in custody, but not interrogated.

The cops did that silly cop thing they do to lay people: they hint at leniency.  No true American believes that crap.  During the course of this conversation at an apartment, the defendant said he might know where a gun was (as it wasn’t in the apartment), but he would need a couple of hours to find it.  The cop said he wasn’t free to leave.  Then they officers obtained “consent” to search the place from someone else.  Two guns were found, including one that the defendant “volunteered” was in a box of “Fruity Pebbles.”  Judge Dyk says that the question isn’t whether the defendant responds to a particular question but whether “The entire course of conduct of the officers must be examined to determine whether the statement was in response to unlawful questioning under Miranda.”  Judge Dyk seems to indicate that the silly cop-talk regarding possible leniency speaks to whether this is interrogation or not. 

At the end, the First says that the actual guns need not be supressed.

CA1: 3-month medicare fraud sentence affirmed after Gall GVR

US v. Thurston, No. 05-2271.  This is a sentencing case that has been to the First Circuit two times before.  (our coverage here).  Skipping through the procedure, the government appeals a three month sentence for Medicare fraud.  After a GVR of a remand, the First Circuit applies United States v. Gall, 128 S. Ct. 586 (2007), and looking only at substantive reasonableness, the First affirms.

CA1: sex offender registration

US v. Alcantara-Mendez, No. 06-2675 (unpublished).  This is strange.  A sex offender didn't register.  His supervised release was violated.    But, the District Court didn't say what the grounds were, but the First says it was was obvious.  Every argument in the pro se brief is dealt with summarily, so it doesn't seem like they are taking it that seriously.