Articles Posted in Evidence and Trials

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In many jurisdictions, jurors receive pretrial questionnaires that let parties and attorneys get to know them.  But what happens when a juror forgets or lies in response to some of the questions and the inaccurate responses are discovered after trial?  That was the question for the First Circuit in United States v. French.

Malcolm French owned approximately 80,000 acres of land in Washington County, Maine.  Rodney Russell was an office manager of sorts.  It turns out people were using pieces of Mr. French’s land to grow considerable amounts of marijuana.  Mr. French and Mr. Russell both claimed they didn’t know about the farming operation and were thus innocent.  A jury disagreed and found them both guilty.

Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset County Jail with another co-defendant told the co-defendant that Juror 86, who sat on the jury before which the case was tried, was the mother of a small-time marijuana trafficker.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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The First Circuit rarely reverses, particularly in criminal cases.  You can read First Circuit opinions for months without coming across a defense-friendly opinion.  And a federal grant of a 2254 habeas petition by any court is a unicorn, in and of itself. See, e.g., Nancy J. King, Non-capital Habeas Cases after Appellate Review: An Empirical Analysis, 24 Fed. Sent. Rptr. 308, 310 (2012) (observing that, after both district and circuit court review, habeas relief was granted in only .8 percent of noncapital habeas cases).  That’s what makes the First Circuit’s decision in Rivera v. Thompson, 879 F.3d 7 (1st Cir. 2018) such a welcome surprise.

The facts: Rivera was in a fight with Williams and it was not going well.  Williams was much bigger than Rivera and the fight quickly became lopsided.  When fellow partygoers realized Williams was in full control and showing no signs of relenting, a group went outside to break up the fight.  Soon after, Williams keeled over on top of Rivera, and one witness said Williams remarked as he fell, “I think he [Rivera] stabbed me.”  But it happened fast and no one was willing or able to identify who stabbed Williams.  Rivera ran and a police officer saw him and ordered him to stop, but Rivera kept going.  When the officer drew his gun and told Rivera to get down, Rivera complied.  With Rivera still on the ground and the officer’s gun drawn, the officer asked Rivera a few questions, but did not issue Miranda warnings.  Rivera responded with some indirect, but inculpatory answers.  Backup arrived soon after, Rivera refused to talk further, and he was brought to the police station.

After a trial, Rivera was found guilty and sentenced to 9-10 years and 5 years of supervised release.  While his appeal was pending, he filed a motion for new trial, arguing his trial attorney was ineffective for failing to move for suppression of his inculpatory statements to the police officer.  The Massachusetts trial court denied the motion for new trial without comment or a hearing.  Rivera pressed his ineffective assistance argument on appeal.  The appellate court rejected it, stating that “it was not ineffective assistance for counsel not to move to suppress the defendant’s initial statements to the police where the questions did not constitute interrogation for purposes of Miranda warnings.” Id. at 11.  The Massachusetts Supreme Judicial Court denied review, and Rivera was off to federal habeas land.

Michael Brownlee is board-certified as an appellate expert by the Florida Bar.  He practices in federal appellate courts around the country and is the founding member of The Brownlee Law Firm.  To learn more visit appealattorney.com or email Mike at mbrownlee@brownleelawfirmpa.com.

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Entrapment is making a comeback.

As a defense I mean. It started making a comeback as a government tactic shortly after September 11 before it migrated to the non-national security law enforcement world.

And the Seventh Circuit appears to be the new home of the entrapment defense as it rises, phoenix-like, on the shores of Lake Michigan. In United States v. Barta, the Seventh Circuit again affirmed the new strength of an entrapment defense in that part of the country.

If you remember one quote from this opinion, remember this one: “The point is that the government is supposed to catch criminals, not create them.”

the-venus-flytrap-4-1234316-m.jpgMr. Barta’s Business

James Barta founded a company called Sav-Rx. Sav-Rx was a “prescription benefit management business.” I believe that means that they help businesses that offer a prescription benefit to their employees with that.

Mr. Barta Meets with the FBI (Unwittingly)

In any event, Mr. Barta came to meet with a man named Castro. Or, referred to as Castro, since he was actually an undercover FBI agent. Castro was known as a guy who could deliver contracts with people at Los Angeles County. He delivered those contracts by bribing them.

When Mr. Barta first met with Castro he told him, right off the jump, “I’m not trying to sell you anything.” He said he was merely there to tell Castro what Sav-Rx does.

Castro told Mr. Barta that he could connect Sav-Rx with the Los Angeles County government because he knew a guy and he’d need to be paid. Barta left twelve minutes after the meeting started.

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Placido Mendoza drove a truck from North Carolina to Tennessee. His passenger was Abel Tavera.

Tavera was a roofer. He later said (to a jury) that he thought he was going to Tennessee to see a construction project.

23.jpgThe truck had construction equipment in it. And a bucket containing nails.

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John Doe (not his real name – but the guy shouldn’t be singled out any more than he already has been. If you really want to see his name, it’s on the opinion from the Fourth Circuit) wanted to have gay sex with a stranger.

Instead of going online like a normal person, he went to a national park in North Carolina. Mr. Doe was in his sixties – apparently baby boomers don’t use Grindr.

Mr. Doe was not the only person in the park looking for men who were looking to have sex with strangers. In response to a complete absence of real crime anywhere in North Carolina, law enforcement was there too.

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We have too many federal criminal laws – more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call – it may or may not be a crime.

673264_hammer_to_fall.jpgFor example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was “harboring” an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, “trust us.” “We,” the government continues, “have scarce resources and good judgment. We won’t prosecute anyone except for really bad people.”

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Many white-collar cases start the same way – a person is an entrepreneur. He has a vision for a business he’d like to build. He wants to do great things and reform an industry.

Things are going well, but he wants to move to that next level. Getting to the next level – whatever it is – takes a little faith, a little elbow grease, and, sometimes, a few cut corners.

The trouble with cutting corners is that once you start to cut them, then get hard to uncut. The corner cutting gets baked into your business model. At some point, the cost of fixing the corner cutting exceeds what you think you can spend on it.

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My grandmother was part Cherokee. I am, I understand, something around one sixty-fourth Cherokee. And, I understand, for years my grandmother’s family tried to hide their Indian status.

They did that for a lot of reasons, but a big one is how the federal government would prefer it if fewer folks were Native American.

Oh, how times change – now the government wants folks to be Indians, as the Ninth Circuit’s opinion in United States v. Alvirez shows us.

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Our brave new world of internet technology is encouraging innovation of all kinds. Innovation of new ways to interact with each other, new ways to learn, new ways to work, new ways to embezzle and create records of one’s embezzlement, and new ways for the government to try to prosecute.

In United States v. Phillips, the Ninth Circuit – in an opinion written by S.D.N.Y. SuperJudge Rakoff sitting by designation – brushed back a prosecution for embezzlement from a tech company.

1369865_mailbox.jpgThe government, you see, prosecuted a former CEO of a tech company for mail fraud.

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It seems that Rolando Ramos was a marijuana dealer. I say that because the police had him on a wire doing drug deals, found marijuana in his house when the executed a search warrant, and because he pled guilty to being involved in a conspiracy to distribute marijuana.

Mr. Ramos worked at a auto repair shop – which he dealt marijuana out of. One guy who worked at the repair shop had a brother in law who was a cop. The cop’s name is Carlos Burgos.

Mr. Burgos was convicted of being a part of Mr. Ramos’s drug distribution conspiracy. But the First Circuit, in United States v. Burgos, overturned that conviction because there wasn’t enough evidence.