Friday, October 27, 2006

Anders Brief not Required When Defendant Seeks Appeal of Non-Appealable Order Over Which Court Lacks Jurisdiction

United States v. Powell, No. 05-50918 (5th Cir. Oct. 25, 2006) (Jones, Smith, Stewart)

The background:
Isaac Powell was under supervised release arising out of a previous counterfeit security conviction when the government requested a blood sample pursuant to theDNA Act. Powell initially refused, but after discussions with the district court judge who warned Powell that if he did not submit the blood sample he could face revocation of his supervised release, he relented and provided the sample to the government. Powell challenges the constitutionality of the DNA Act in this appeal.

Slip op. at 1-2. The court holds that it lacks jurisdiction to consider Powell's appeal because he appealed from a non-appealable order. The court further holds that "[t]here is no Anders duty in situations such as this where defendant seeks an appeal of a nonappealable order over which this court has no jurisdiction." Slip op. at 2.

Thursday, October 26, 2006

Anything Interesting in the Recent Unpublished Opinions?

The Fifth Circuit has issued dozens of unpublished opinions in the past several days. Many of them appear to involve Apprendi appeals in 1326 cases, as well as preservation of the felony-simple-possession-not-an-aggravated-felony issue currently before the Supreme Court. But there could be an interesting needle in this giant unpublished haystack. If you know of any such needles, please point them out in the comments.

Failure to Raise Particular Argument for Inapplicability of Good Faith Exception Constitutes Waiver of that Specific Argument

United States v. Pope, No. 04-51008 (5th Cir. Oct. 17, 2006) (Jolly, Wiener, Dennis)

This is the second opinion in this case, which involves an appeal from the district court's denial of Pope's motion to suppress evidence obtained during the execution of two separate search warrants at her home. The pivotal issue is the applicability of the Leon good faith exception to the first warrant. (The second warrant was based on information obtained during the execution of the first one.)

The first time around, the court of appeals agreed with Pope that the good faith exception did not apply because the supporting affidavit was recklessly false. See 452 F.3d 338. That holding drew a sharp dissent, which accused the panel majority of taking liberties with, misrepresenting, and exaggerating the record to make a factual finding on an issue that the district court never even considered. (The majority disputed that, of course.)

The panel reconsidered the case sua sponte, and now holds that Pope waived the argument regarding reckless falsehood by not raising it in the district court. The court observed that Leon identified four situations in which the good faith exception would not apply (exceptions to the exception, if you will). The court concludes that Pope only argued for one of them in the district court, and it was not the one on which the first opinion granted relief (she argued that there was no objectively reasonable reliance on the warrant, rather than reckless falsehood in the supporting affidavit). The court holds that even though Pope moved to supress evidence and disputed the applicability of the good faith exception, she waived the specific argument on which she relied on appeal (reckless falsehood) by not raising that specific argument in the district court. It further held that the good faith exception did apply because the officer's reliance on the warrant was objectively reasonable.

To state the court's waiver holding another way, there are four exceptions to the Leon good faith exception: A, B, C, D. Pope only argued A in the district court, but she argued both A and B on appeal. Because Pope did not argue B in the district court, she waived that argument and the court of appeals could not consider it. (The court also held that even if the failure to raise the argument was treated as a forfeiture rather than a waiver, it wouldn't constitute plain error.) And A didn't apply.

Friday, October 20, 2006

LEO's Expert Testimony on Methods of Illegal Alien Transportation Violated FRE 704(b); Conviction Reversed

United States v. Hernandez-Acuna, No. 05-30555 (5th Cir. Oct. 17, 2006) (per curiam) (unpublished) (King, Garwood, Jolly)

Sometimes you find the most interesting things in unpublished opinions. For example, when was the last time you saw a conviction reversed on the ground that a law enforcement agent's "expert" testimony crossed the line into an impermissible opinion on the defendant's mental state? The opinion's a little murkier than it could be on that point, but you nevertheless might be able to use it to persuade a district court to circumscribe the scope of, if not prohibit, this highly questionable type of testimony.

Hernandez was a driver for a small (apparently unlicensed) transportation company in Dallas. "On May 16, 2004, Hernandez was the relief driver riding in the front passenger seat of a van when Officer Earlton Parker of the Greenwood City[, Louisiana] Police Department stopped the driver, Jose de Jesus Contreras, for speeding." For whatever reason, Officer Parker summoned ICE agents to check the immigration status of the van's passengers. All of the passengers, including Hernandez, turned out to be aliens illegally present in the United States.

Hernandez was charged with ten counts of illegal alien transportation and one count of conspiring to transport illegal aliens for gain. His defense seems to have centered on the mens rea element of the offenses, i.e., whether he knew or recklessly disregarded the aliens' immigration status. The jury convicted him on all counts. Hernandez challenged his conviction on several grounds, resulting in an odd mix of holdings from the court of appeals.

The most significant holding (seeing as how it results in the reversal of Hernandez's conviction) involves the expert testimony of Agent Jon Stansel concerning camioneta vans. See slip op. at 4-12. Here's the court's summary of his testimony:
In this case, Agent Stansel testified that “camioneta” is a Spanish word meaning small bus or van and that law-enforcement officials generally refer to a camioneta operation as a van company that does not comply with regulations and that transports illegal aliens across the United States. He also noted that smugglers bring illegal aliens directly to the van companies, which then transport the aliens from larger cities, such as Houston and Dallas, to other locations in the United States. According to Agent Stansel, camioneta operations are considered a “front” for alien smuggling operations and do not put signs on their vans to avoid detection. The camioneta passengers do not volunteer that they are illegal aliens, and the company does not ask questions regarding the passengers’ immigration status so that its personnel can say they were unaware of it. [. . .] In Agent Stansel’s opinion, border patrol agents watch for camioneta vans because they are “100% illegal” and the facts of this case were consistent with camioneta operations that he had investigated in the past.

Got any problem with that? The court sure did. It had no trouble concluding that Agent Stansel's testimony was the functional equivalent of an opinion as to whether Hernandez had the mental state required for the charged offenses, an opinion which is of course prohibited by Fed. R. Evid. 704(b). The court even went so far as to conclude that the district court's abuse of discretion in allowing the forbidden testimony was not harmless in light of the thin circumstantial evidence of Hernandez's guilty knowledge.

Unfortunately, the opinion is a little vague on exactly which portions of the testimony were problematic. It makes sure to note that "only that which amounted to a comment on Hernandez's mental state was improper[,]" but it isn't clear whether all of the testimony mentioned in the opinion crossed the line, or just some of it. (Personally, I don't see what value any of Stansel's testimony could have possibly had apart from the looks-acts-and-quacks-like-a-duck inference that the Government clearly expected the jury to draw from it.) Nevertheless, the case should serve as a reminder to district courts to be very careful about allowing this type of flimsy "expert" testimony from law enforcement agents that isn't at all helpful to the jurors' understanding of the evidence in the case.

Where this opinion gets strange is in its resolution of two other issues: the district court's refusal to allow Hernandez to introduce expert testimony of his own regarding camioneta vans (see slip op. at 12-13), and Hernandez's sufficiency challenge to his conviction (see id. at 13-16).

First, the proffered defense expert. Hernandez wanted to call Robert Van Kemper, a professor of cultural anthropology at Southern Methodist University in Dallas, to testify about Hispanics' use of camioneta vans in Mexico and Dallas. The district court refused to allow it for two reasons. First, the district court found the testimony unreliable because it "relied largely upon one study on camionetas done by a professor in Los Angeles," and that study had not been peer-reviewed. Second, the district court concluded that 704(b) precluded the testimony because even though Van Kemper was qualified as an anthropologist, he "was in no better position than a juror to conclude whether Hernandez's actions demonstrated knowledge or reckless disregard of the passengers' immigration status." The court of appeals found no abuse of discretion as to the reliability determination, and concluded that "[b]ecause the purpose of Professor Van Kemper’s testimony was to negate Agent Stansel’s testimony and to provide other evidence concerning Hernandez’s state of mind, the testimony was rightfully excluded under Rule 704(b)."

What? Recall that the court held just a few pages earlier that only some of Agent Stansel's testimony crossed the 704(b) line. By holding the way it does the court sanctions a one-sided presentation to the jury wherin the government gets to elicit expert testimony from a law enforcement officer who sees alien smuggling in every camioneta operation, but the defense can't offer its own expert (a professor of cultural anthropology, no less) to give another expert perspective on who uses camionetas and why. And as far as the reliability issue is concerned, the court makes the common error of relying largely on Daubert to resolve that issue. Daubert isn't really on point for non-scientific expert testimony, and even under Daubert peer-review is not a sine qua non of admissibility. (Bonus tip: see Daubert on the Web for all things Daubert.)

The final point I'll mention is the court's rejection of Hernandez's sufficiency challenge to his conviction. (Why the court even addresses this issue given its reversal of the conviction on other grounds is a mystery.) Here's what the court had to say:
Even if, for the sake of argument we exclude Agent Stansel’s testimony bearing directly on Hernandez’s state of mind, the record is not devoid of evidence pointing to Hernandez’s guilt, nor is the evidence so tenuous that a conviction would be shocking. The remainder of Agent Stansel’s testimony, in addition to Officer Parker’s and Agent Patton’s testimony describing the condition of the van’s passengers, suggests that Hernandez may have recklessly disregarded the passengers’ illegal status. For instance, the evidence showed: (1) that the passengers had utilized a small transport company operated by and for Spanish-speaking individuals; (2) that the van company allowed payment at the destination rather than requiring payment up front; (3) that all the passengers appeared to be Hispanic; (4) that there was a “strong odor” indicating that some of the passengers had not bathed recently; (5) that the van was crowded; (6) that the passengers’ clothing was “dingy”; (7) that they had little luggage in the van, a mere four or five backpacks among twelve passengers each taking a long distance trip; (8) that safety equipment was not in the van; and (9) that the exterior of the van was unmarked.

Since the court reverses the conviction on other grounds, anyway, I guess we'll have to agree to disagree about whether that evidence is sufficient to show reckless disregard.

Good Faith Exception Saves Search Warrant for Child Pornography

United States v. Flanders, No. 05-10785 (5th Cir. Oct. 20, 2006) (Smith, Garza, Clement)

(UPDATE: As of around 5:30 p.m. on Friday, October 20th, this opinion is no longer listed on the Fifth Circuit's opinion page and the link above takes you to a dead page.)

(10/23 UPDATE: It's back up now.)

Okay, techinically the good faith exception didn't "save" the warrant at issue here because, given the cart-before-the-horse approach to the issue, the court never actually decided whether the warrant needed saving in the first place. In any event, the court held that the good faith exception applied here, and affirmed the district court's denial of Flanders' motion to suppress child pornography found on his home computer.

The search warrant was for files, photos, etc. containing images of minors engaging in sexual conduct. The affidavit submitted with the warrant application alleged that

  1. ICE agents found an Internet chat log in which Flanders described sex acts he performed with his two-year-old daughter;
  2. the daughter described those acts to a "forensic interviewer;"
  3. Flanders' wife told investigators that he visits adult pornography sites on the Internet, and that he had once taken a picture of his daughter standing naked on a bed after his wife had taken her out of the shower; and
  4. the affiant believed, based on training and experience, that those who sexually abuse children also collect and exchange child pornography with others.
Flanders argued that "the mere fact that he allegedly had sexually abused his young daughter does not create probable cause that he possessed child pornography[,]" and that "there was not probable cause that child pornography would be located in his home."

The court held that the officers' reliance on the warrant was objectively reasonable, thus triggering the good-faith exception to the warrant requirement. As to Flanders' first argument, the court concluded that the inference of child pornography possession from alleged acts of sexual abuse was unnecessary to a finding of probable cause. Instead, "the act of digitally photographing a naked child whom the defendant had allegedly previously sexually exploited provides direct support for the search for child pornography." As to Flanders' second argument, the court decided that Flanders' wife's allegations about his Internet activity and the photographing of his daughter, coupled with the unique convenience of a home as a place in which to hide the fruits of criminal activity, were enough to support good-faith reliance on a judge's PC determination that child pornography would be found on Flanders' home computer.

Wednesday, October 18, 2006

Michigan Felonious Assault Equivalent to Generic Aggravated Assault; Triggers 16-Level COV Whack Under U.S.S.G. §2L1.2

United States v. Saucedo-Roman, No. 05-41013 (5th Cir. Oct. 16, 2006) (per curiam) (unpublished) (Smith, Wiener, Owen)

Our old nemesis COV makes yet another appearance. In this case, the prior conviction triggering the 16-level crime of violence enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) is a Michigan conviction for felonious assault. Michigan defines that offense as "assault[ing] another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder . . . ." Slip op. at 2 (quoting Mich. Comp. Laws § 750.82 (2002)). The court concludes, on the authority of United States v. Sanchez-Ruedas, 452 F.3d 409, 312 (5th Cir. 2006), that the Michigan offense is equivalent to generic aggravated assault as embodied in the Model Penal Code, and therefore a crime of violence.

This result may be consistent with Sanchez-Ruedas, but that case may have been wrongly decided so Saucedo-Roman should be considered questionable, as well.

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Substantial Assistance Motion Permits District Court to Sentence Below Mandatory Minimum for 924(c)

United States v. James, No. 06-30405 (5th Cir. Oct. 18, 2006) (per curiam) (Smith, Wiener, Owen)

James pled guilty to one count of conspiracy to distribute methamphetamine (21 U.S.C. §§ 841(a)(1), 846), and one count of possessing a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)). His guideline range on the meth count was 151 to 188 months, while the 924(c) count required a statutory mandatory minimum of 60 months. However, the Government filed a substantial assistance motion, which the district court granted. The court sentenced James to a total of 84 months' imprisonment: 24 months on the meth count, to run consecutively to 60 months on the 924(c) count. Although the court had granted the substantial assistance motion, it believed that it was still bound by the 924(c) mandatory minimum.

James appealed, arguing that a substantial assistance motion does in fact give a district court discretion to sentence below a mandatory minimum for a 924(c) violation. The court of appeals agreed, holding for the first time that
18 U.S.C. § 3553(e) applies to the mandatory minimum sentences of 18 U.S.C. § 924(c)(1), and that a Government motion made pursuant to section 3553(e), requesting that the district court depart from the statutory minimums of section 924(c)(1), gives the district court the authority to depart from the section 924(c)(1) mandatory minimums.

Slip op. at 4. The court accordingly vacated the sentence and remanded for resentencing.

(Although this is a per curiam opinion, the slip follows Judge Owen's characteristic style of placing citations to authority in footnotes rather than in the main text.)

Monday, October 16, 2006

Constructive Amendment of False Statement Charge Results in Reversal of Conviction

United States v. Hoover, No. 05-30564 (5th Cir. Oct. 10, 2006) (Jolly, Prado, Owen)

In Hoover the Fifth Circuit breaks out the thesaurus and concludes that "complain" and "told" were sufficiently synonymous in the context of a false statement count, thus defeating a sufficiency challenge to the indictment (althought the court implies that the result might have been different had the error been preserved). Hoover nevertheless wins himself a new trial because the district court's jury instructions constructively amended the false statement count (the instructions allowed for a conviction based on a different lie than the one alleged in the indictment). These types of cases tend to be pretty fact-specific, so a detailed summary follows.


Hoover owned a 90% stake in a Ford dealership in Louisiana. The FBI executed a search warrant at the dealership to investigate some alleged financial improprieties. One of the agents executing the warrant spoke to Hoover about his knowledge of "double flooring," which the opinion describes as "an illegal practice whereby a single vehicle is used as collateral for more than one loan." Slip op. at 2. According to the agent, Hoover claimed that only one employee at the dealership had ever discussed the issue of double flooring with him.

The Government subsequently indicted Hoover and several others on charges involving false statements and conspiracy to commit bank fraud. A jury acquitted Hoover on the conspiracy charge, but found him guilty of making a false statement regarding double flooring.

Hoover challenged his conviction on several grounds, only two of which the court addressed: the sufficiency of the false statement count, and the constructive amendment of the indictment.

Sufficiency of False Statement Count

The false statement count alleged that Hoover
"did knowingly and willfully make fictitious and fraudulent material statements and misrepresentations . . . during the course of an interview being conducted by [Agent Chesser of the FBI]" when Hoover "stated and represented that only one person had complained of 'double flooring' of vehicles . . . when in truth and in fact [Hoover], then and well knew that more than one individual had told him about the 'double flooring' of vehicles . . . ."

Slip op. at 4 (alterations and omissions in original).

Hoover argued that the count failed to allege an offense, for two reasons: 1) "complain" and "told" are not synonymous, so "more than one person could have 'told' him about the double flooring of vehicles at the car dealership without 'complaining' about it[;]" and 2) the count "alleged that the statement was material without adducing any facts or circumstances to establish materiality." Slip op. at 4-5.

Hoover never challenged the sufficiency of the indictment in the district court, so the court of appeals reviewed for plain error. (Hoover did move for a bill of particulars in the district court, as well as for a Rule 34 arrest of judgment, but the court holds that neither of those requested remedies will preserve a challenge to indictment defects.)

The court rejected both of Hoover's arguments regarding the sufficiency of the false statement count. Relying on Roget's Third Millenium Thesaurus, the court observed that "[a]lthough ["complain" and "told"] are not generally thought of as synonyms, they can have the same connotation in certain contexts." Slip op. at 7. The court held that in this context "[t]elling or informing Hoover of . . . an illegal practice [such as double flooring] could readily be characterized as making a complaint, especially where, as here, the subject matter is an improper business practice and the party being told is an owner of the business." Id.

As for Hoover's complaint about the lack of specifics regarding the materiality of the allegedly false statement, the court simply held that as long as all of the elements are there, an indicment need not go into further factual detail.

Interestingly, the court made a point of "not[ing] that this analysis is made under a plain-error standard of review." Slip op. at 8.

Constructive Amendment of False Statement Count

This one's a little tricky, but here goes. Recall that the indictment alleged that Hoover "stated and represented that only one person had complained of 'double flooring' of vehicles . . . when in truth and in fact [Hoover], then and well knew that more than one individual had told him about the 'double flooring' of vehicles . . . ." The district court "instructed the jury that it could convict Hoover if it found that he 'stated that only one person had complained of "double flooring" of vehicles and that such statement was intentionally false.'" Slip op. at 8-9.

Hoover argued the instruction constructively amended the indictment because the indictment required the Government to prove that more than one person complained to Hoover personally about double flooring, whereas the jury instruction allowed the jury to convict Hoover if he was merely aware that more than one person had complained about double flooring, even if he learned of those complaints from just one person.

The court agreed. "[W]hen the government chooses to specifically charge the manner in which the defendant's statement is false, the government should be required to prove that it is untruthful for that reason." Slip op. at 12 (citing Stirone v. United States, 361 U.S. 212, 219 (1960)). "[U]nder the language in the jury instructions, the government only needed to prove that Hoover knew that more than one person had complained about double flooring, not that he knew that more than one person complained to him." Id. at 13-14 (emphasis added). "[B]ecause the indictment charged Hoover with making one false statement, and the jury instructions allowed the jury to convict him for making a different false statement, the trial court constructively amended Hoover's indictment." Id. at 14. The court accordingly vacated Hoover's conviction and remanded for a new trial.

Supreme Court Hears Argument on Whether Omission of Element from Indictment Can Be Harmless

Today the Supreme Court heard oral argument in United States v. Resendiz-Ponce (No. 05-998). The issue in the case is whether an indictment's failure to allege all of the elements of an offense can be harmless error. Depending on how the Court decides the case, it may also have something to say about the elements of attempted illegal reentry.

You can read SCOTUSblog's preview of the oral argument here, and the post-game here.

A transcript of today's argument is available here.

UPDATE: It now looks more likely that the Court will address the elements of attempted illegal reentry in one way or another. SCOTUSblog reports that the Court has requested supplemental briefing from the parties on this question: "Did the indictment omit an allegation that was required by the Fifth Amendment?" At issue here is whether an indictment for attempted illegal reentry must allege an overt act/substantial step towards the actual entry.

Thursday, October 12, 2006

Another Supreme Court Case to Watch, This One Involving Sentencing

Yesterday the Supreme Court heard oral argument in Cunningham v. California (No. 05-6551), a case which involves the constitutionality of California's sentencing scheme. Some commentators believe that the decision may have big implications for federal sentencing, particularly the contours of reasaonableness review.

Lyle Denniston has a recap of yesterday's argument at SCOTUSblog, and Professor Berman (who's been following the case closely) has a couple of posts about the argument here and here.

A transcript of the argument is available here.

UPDATE: Professor Berman has additional thoughts here, and invites readers to chime in with predictions on how Cunningham will ultimately turn out.

Tuesday, October 10, 2006

Deadly Conduct Under Tex. Penal Code § 22.05(b)(1) is a 16-Level Crime of Violence Under U.S.S.G. §2L1.2(b)(1)(A)(ii)

United States v. Hernandez-Rodriguez, No. 05-51429 (5th Cir. Oct. 10, 2006) (per curiam) (Jolly, Davis, Wiener)

Hernandez, who pled guilty to illegal reentry, had a prior Texas conviction for deadly conduct. He was convicted under subsection (b)(1) of the deadly conduct statute, Tex. Penal Code § 22.05, which provides that "[a] person commits an offense if he knowingly discharges a firearm at or in the direction of . . . one or more individuals[.]" The court held that the offense necessarily involves the threat of force against a person, even if the gun is fired in the general direction of another person rather than directly at him. Because the offense involves the threatend use of physical force it qualifies as a crime of violence for purposes of U.S.S.G. §2L1.2(b)(1)(A)(ii).

Note that there are other ways of committing deadly conduct under § 22.05 that may not necessarily require the use, attempted use, or threatened use of physical force against another person. (The court discusses one of them at pages 5 through 7 of the slip.) Note also that the issue may turn on which version of the deadly conduct statute is at issue. See slip op. at 5 n.1. So don't assume that all convictions for "deadly conduct" constitute crimes of violence.

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Thursday, October 05, 2006

Simple Assault on a Peace Officer is not Generic Aggravated Assault, and Therefore not a 2L1.2 Crime of Violence

United States v. Fierro-Reyna, No. 05-51198 (5th Cir. Sept. 28, 2006) (Smith, Garza, Clement)

If you're looking for a textbook example of how to deal with the enumerated offense prong of guideline §2L1.2's 16-level crime of violence definition, then you need look no further than Fierro-Reyna. In fact, this opinion is so well-reasoned and so concise (it clocks in at a trim six pages) that you might as well just read the whole thing instead of a summary. Okay, maybe just a short preview:
  • Fierro-Reyna holds that simple assault on a police officer (which Texas classified as aggravated assault) is not generic aggravated assault because only a small minority of states treat a victim's status as a police officer as an aggravator that will convert simple assault into aggravated assault.
  • The opinion explains that that Taylor is the source of the common-sense approach to enumerated crimes of violence (thus putting to rest the notion that the common-sense approach is any different from or less rigorous than the categorical approach).
  • Where other cases have just relied on the Model Penal Code for the generic definition of an enumerated offense, Fierro-Reyna canvasses all of the relevant sources for the definition of generic aggravated assault, including Black's Law Dictionary, LaFave's "Substantive Criminal Law," and the statutes of other states (and in doing so Fierro-Reyna reveals that LaFave needs some updating on the point at issue in this case).
  • Astonishigly, the Government actually argued that "any conviction a state labels with the title of one of the enumerated crimes of violence automatically triggers a sentence enhancement." As you know by now, the court held otherwise.

Sounds pretty good, doesn't it? Now go read the whole thing.

Wednesday, October 04, 2006

BIA Misprision Decision/Immigration Consequences

This one might have escaped attention because it is BIA instead of 5th Circuit.
BIA holds that misprision of a felony is per se a crime of moral turpitude (i.e., misprision is always a deportable offense, no matter what the underlying facts are).
Very bad if the defendant is trying to avoid a deportation by pleading to a misprision. Case is Matter of ROBLES, 24 I&N Dec. 22 (BIA 2006).

Here is the link:

Yesterday's Supreme Court Arguments Regarding Simple Possession as an Aggravated Felony

Yesterday the Supreme Court heard oral argument in the consolidated cases of Lopez v. Gonzalez and Toledo-Flores v. United States. The issue, which affects a number of cases in this circuit, is whether a state felony conviction for simple possession of drugs is an aggravated felony, notwithstanding the fact that the same conduct would only be a misdemeanor under federal law.

How Appealing has collected links to articles about yesterday's argument here.

You can read a transcript of the argument here.

Monday, October 02, 2006

Court Rejects Several Arguments Regarding Conviction and Sentence for Felon-In-Possession

United States v. Cordero, No. 04-51314 (5th Cir. Sept. 25, 2006) (Jolly, Prado, Owen)

I realize the header isn't all that descriptive, but I failed in my attempt to fit all of the issues decided here into a sufficiently short headline. So here's what happened in Cordero:

Cordero was convicted, at a bench trial, of being a felon in possession of a firearm. The gun was found by state law enforcement officers when they executed a state search warrant for cocaine at Cordero's home. On appeal Cordero argued that 1) the gun should have been suppressed because the warrant was not supported by probable cause, 2) the district court erred in denying him an adjustment for acceptance of responsibility, and 3) "the district court violated United States v. Booker by enhancing his sentence based on a judicial determination that he commited the instant offense while on probation." The court rejected all three arguments, but vacated the sentence because Cordero was sentenced under a then-mandatory (post-Blakely, pre-Booker) sentencing scheme.

The Warrant: The issue here was whether the good-faith exception to the exclusionary rule applied, and more specifically whether the affidavit used to obtain the warrant was "'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Slip op. at 5 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). The court
conclude[d] that the affidavit is not so “bare bones” that the good-faith exception is inapplicable. The deputy’s affidavit alleges recent, personal observation of cocaine in Cordero’s residence by an informant who “ha[d] demonstrated his/her ability to identify Cocaine” and related paraphernalia. The informant also identified the residence, car, and “outer premises,” and this information was confirmed by the deputy. Thus, according to the affidavit, the deputy tested the informant’s reliability both as to his or her ability to identify cocaine and as to the details of the location where the cocaine was reportedly observed. Given the informant’s report of recent, personal observation of cocaine, the informant’s demonstrated ability to identify cocaine, the premises details conveyed to the deputy, and the deputy’s successful efforts at corroboration, we conclude that the good-faith exception to the exclusionary rule applies.

Slip op. at 5-6 (citations omitted). Color me unpersuaded. The informant may have been able to reliably identify cocaine, but there's no mention here as to whether the informant had provided reliable information about the location of cocaine in the past. And the deputy's attempt at corroboration didn't actually test the reliability of the informant's claim. Anyone could have accurately described the exterior of the house and the car; those details don't suggest any reliable knowledge of what was going on inside the house. In the end, there's really nothing more than a CI who said, "There's cocaine in that house." "You mean that house?" "Yeah."

Denial of Acceptance: The court affirmed the denial of acceptance, distinguishing United States v. Washington, 340 F.3d 222 (5th Cir. 2003), a case holding that a defendant may still be eligible for acceptance even if he has a bench trial for the purpose of preserving a challenge to a denial of a suppression motion.

In this case, unlike in Washington, Cordero did not stipulate “to all the evidence necessary for the conviction prior to the bench trial.” Instead, he “put[] the government to its burden of proof.” Cordero refused to stipulate to the third element–that he knowingly possessed the firearm–ostensibly to avoid waiving the suppression issue. In addition, Cordero did not stipulate to the interstate-commerce element until the government called its witness at trial and the court asked whether the element was in dispute. Finally, Cordero moved for a judgment of acquittal at the end of the trial “on the grounds that the Government . . . failed to prove its case beyond a reasonable doubt.”

In addition, unlike the defendant in Washington, Cordero could have received the acceptance-of-responsibility reduction without waiving appeal of the suppression issue. Cordero was offered a conditional plea agreement, under which he could have received an acceptance-of-responsibility reduction while preserving appeal of the suppression issue. Cordero rejected the plea agreement because it also waived appeal of any sentencing error, which Cordero argued was unacceptable. But even if Cordero found the plea agreement unacceptable, no evidence suggests Cordero had to accept the agreement the prosecution offered to preserve appeal of the suppression issue. Cordero presents no evidence that he could not enter a conditional plea under Federal Rule of Criminal Procedure 11(a)(2), which allows a defendant to plead guilty while preserving the right to appeal issues raised in pretrial

Slip op. at 9-10 (citations omitted). That last part is odd, given the fact that the Government must consent to the entry of a conditional plea. Presumably the Government refused to give that consent unless Cordero waived appeal of his sentence.

Booker: Cordero argued that it violated Booker for the district court to increase his criminal history based on that court's finding that he committed the instant offense while on probation. The court disagreed, citing decisions from several other circuits for the proposition that facts related to the fact of prior conviction, "such as the timing of the conviction and the type and length of sentence imposed, may be judicially found at sentencing." Slip op. at 11. There's no detailed discussion of this issue, probably because the court vacates the sentence due to the district court's error in imposing a sentence under the mandatory post-Blakely/pre-Booker regime.

Search & Seizure Outline

Via Steve Sady at the Ninth Circuit Blog:
For the past decade, the Oregon Federal Public Defender has published an outline of federal search and seizure cases from a defense perspective. We set out the general state of the law and, through counterpoints to the cases restricting Fourth Amendment rights, keep track of cases in which defendants have succeeded in suppressing evidence based on creative use of facts and law. The point of the outline is to provide a starting place for research, a repository for cases that frequently are useful, and an optimistic approach to Fourth Amendment issues. The most recent update, prepared for the Oregon Criminal Defense Lawyers Association meeting this week, is available here.