drugcrimedefender

Late April/Early May Criminal Case Summaries From First Circuit Defender's Blog

Read a number of important decision summaries here.  Including cases on spoilation of evidence and due process, a great defense decision on the fruit of the posionous tree doctrine, juvenile sentencing and abuse of trust sentencing enhancements.

Money Laundering Sentencing Enhancements

From the First Circuit Federal Defender Blog:

Torres-Velazquez

No clear error in six-level enhancement under USSG 2S1.1(b)(1) for knowledge that laundered funds were proceeds of drug offense where modus operandi of D and coDs was typical of drug organizations, D had two prior drug convictions, and there was large quantity (over $750,000) of cash. No plain error in applying two-level enhancement under USSG 2S1.1(b)(2)(B), even where section is inapplicable under note 3(c) if sole object of conspiracy is laundering funds under 18 USC 1957, since D plead guilty under 18 USC 1956 to conspiracy to launder funds knowing that the proceeds were derived from an unlawful activity.

3/28/07

Money Laundering Issue To Go to the Supremes

Via Federal Crimes Blog:

The Supreme Court agreed Monday to review a case that would undercut the federal money laundering law used to prosecute thousands of defendants every year.^[1] The Justice Department has asked the court to overturn an appeals court ruling that increases the burden of proof for convictions in such cases by requiring prosecutors to demonstrate the profitability of illegal activity.^[2]

The decision by the 7th U.S. Circuit Court of Appeals in Chicago ''removes a large class of routinely prosecuted money laundering cases from the reach of the statute,'' the department's solicitor general said in a brief asking the justices to take the case.^[3] How is the government supposed to find hard evidence of profits when ''criminals rarely keep accounting records, much less accurate ones."^[4]

First Circuit April Roundup

Via First Circuit Federal Defenders Blog Chris Goddu does his usual great roundup of Monthly First Circuit decisions:

Pierre

No constructive amendment of indictment in presenting evidence of conspiracy with several participants where government theory was that D conspired with many in drug possession and distribution, indictment did not limit co-conspirators, and evidence did not necessarily show two separate conspiracies. . . .

Owens – Important.

in 28 USC 2255 case, it was abuse of discretion to deny evidentiary hearing on ineffective assistance of counsel claim based on counsel’s failure to advise D of right to testify where D submitted affidavit that he was not informed of right to testify, one of two attorneys filed affidavit stating that he did not remember discussing right to testify with client, and there was no affidavit from second attorney. Instruction to jury regarding D’s right not to testify did not sufficiently apprise D of right. . . .

Luisi – Important.

Remand. Instruction relating to entrapment defense that precluded jury from considering role of third person who government agent suggested should put threatening pressure on D was error.

. . .

Materas

No error in failure to grant Franks hearing where, even if police intentionally misrepresented that D lived at location to be searched, there was sufficient grounds to search location on basis of controlled buy made there 2 days before, and other information linked D to address.

. . .

Henry

No abuse of discretion in failure to grant discovery requests made on eve of trial that were broad and repetitive of material already provided. Material sought largely aimed at impeaching government cooperator, D extensively impeached him, government heavily relied on tapes, and jury acquitted on the one count where, because of poor tape quality, it would have to have relied solely on cooperator’s testimony.

. . .

04/03/07

Garcia-Carrasquillo

Remand. Evidence of possession w/intent sufficient where D voluntarily admitted at p.c. hearing that all drugs and guns in his house were his. Evidence of aiding and abetting possession w/intent sufficient where evidence that D, an escapee, was in hiding with uncle who admitted to possession of drugs and guns, traveled with him in stolen car to house where drugs kept, stayed with uncle for hours, then attempted to flee from police, exchanging gunfire. Insufficient explanation for sentence where court gave one-sentence explanation conclusorily stating that it had considered the appropriate adjustments and the 18 USC 3553(a) factors, record of parties’ arguments could not reveal what reasoning was, and guideline range spanned more than 24 months.

. . .

Tejeda

No abuse of discretion in failure to declare mistrial after jurors reported seeing spectator make throat-slitting gesture and discussed it amongst themselves after spectator was identified as someone agent saw near car carrying drugs.

First Circuit Rejects Drug Defendant Claims

Via Appellate Law & Practice:

US v. Pierre, No. 05-2309 affirms a conviction and forfeiture order in a drug case.  The defendant makes a number of rejected claims.  The most interesting is a forfeiture issue, but you have to read below the fold to find it.  Also, there is a strange issue regarding what happens when a cop's knowledge of someone's license suspension become stale.  But the defendant loses on everything.

The Law of The Case and Crack Cocaine in the 1st Circuit

Appellate Law and Practice analyzes a recent 1st Circuit crack cocaine case of US v. Medina, No. 06-2142 (unpublished).

Careful with those appeal waivers

Via Appellate Law & Practice

US v. Miliano, No. 05-2746 dismisses an appeal by a defendant who waived his right to appeal, but got sentenced to more than he expected (because the judge found that he knew that the funds he was ferrying were drug money as opposed to other kinds of ill-gotten funds).  Despite the agreement, the judge said “under some circumstances you or the government may have the right to appeal any sentence that this court imposes.”  The defendant appears to have appealed the sentence itself, and doesn’t raise the appeal waiver.  He didn’t raise it in his opening brief, and he didn’t file a reply brief.  Applying United States v. Teeter, 257 F.3d 14 (1st Cir. 2001), the First finds that there just wasn’t a miscarriage of justice.

New First Circuit Cases

Appellate Law & Practice analyzes new cases from the First Circuit:

• Lopez v. Commonwealth of MA, No. 06-1663. (Analysis and comment here) (Brady discovery violations claimed, conviction upheld).
• US v. Washington, No. 06-1970 (unpublished) (Analysis and comment here) (Post Booker sentencing case).
• US v. Nieves-Castano, No. 06-1517 (Analysis and comment here.)  OK, its not a drug case but I like guns and there is some interesting commentary on how distance should be measured from a school zone and the inferences which can be drawn from the presence of schoolchildren)