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Short Wins – A Miranda Violation and Two Fraud Convictions Vacated

Last week was a great week for folks appealing a federal conviction.

In United States v. Garrido and again in United States v. Cone fraud convictions were reversed by the Ninth Circuit and the Fourth Circuit. Separately, in the Ninth Circuit, a conviction was reversed and remanded for a Miranda violation in United States v. Barnes.

There was also a bit of news in the continuing budget problems plaguing federal defender’s offices – two federal judges wrote a nice op-ed in the Washington Post about the problem.

I was lucky to see Stephen Bright speak at the annual D.C. Judicial Conference on Friday – he was, as one would expect, inspiring. He blamed the current FPD budget woes on the decision to let federal defenders be under the judiciary, instead of be their own independent body.

He also had a nice story about the Attorney General, to mark the 50th anniversary of Gideon, calling a number of folks in the indigent defense community in for a meeting. After acknowledging that there’s a crisis in indigent defense in this country, Mr. Holder announced a number of grants that DOJ was going to award to help defense lawyers. Stephen Bright, totaling the amount that was being promised, realized that, at $10 million, it was approximately 10% of what DOJ spends on conferences for prosecutors in a year.

That’s change you can believe in.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Barnes, Ninth Circuit: Appellant was convicted of distributing controlled substances. The district court erred in denying his motion to suppress his confession, which was made during a meeting with FBI agents and a parole officer. Because the agents deliberately delayed giving Miranda warnings to induce appellant’s cooperation, the warnings that were given were too little, too late. Because the court’s failure to suppress the statements, which were central to appellant’s conviction, was not harmless, the conviction was reversed.

2. United States v. Cervantes, et al, Fifth Circuit: Appellants Cristobal Cervantes and Luis Alvarez were convicted of, among other things, conspiracy to possess a controlled substance with intent to distribute and possessing a firearm in furtherance of a drug trafficking crime. The district court applied a two-level sentencing enhancement for firearm possession to appellants’ conspiracy convictions. This was inappropriate double punishment because they were also separately sentenced for possession of a firearm in charge of a drug trafficking crime. As a result, the sentences were vacated and the case remanded for resentencing.

3. United States v. Cone, Fourth Circuit: Donald Cone and Chun-Yu Zhao were convicted of charges arising out of their scheme to import and sell counterfeit pieces of computer equipment. Because the government’s “material alteration” theory of criminal liability did not make what appellants did a crime under the federal statute, Ms. Zhao’s substantive counterfeiting charge and money laundering charges, as well as both of appellant’s conspiracy charges, were vacated. Because the evidence was insufficient to support Ms. Zhao’s conviction for criminal counterfeiting, that conviction was also vacated. For these reasons, appellant’s sentences were vacated and the case remanded for resentencing.

4. United States v. Garrido, Ninth Circuit: Albert Robels and George Garrido were convicted of charges arising out of schemes to award city contracts to specific companies. Because their honest services fraud convictions were based on an unconstitutional theory of a failure to disclose a conflict of interest, they were reversed. Because two of Mr. Garrido’s convictions were not based on sufficient evidence, those were reversed as well. Mr. Robles’ money laundering convictions were reversed because they were based on the flawed honest services fraud convictions.

5. United States v. Hargrove, Sixth Circuit: Appellant pled guilty to possession of child pornography and was ordered by pay restitution. Because the district court erred in ordering restitution under 18 U.S.C.§ 2259 without requiring the government to demonstrate that any of the losses sustained by the victims were proximately caused by appellant’s offense, the order was vacated and the case remanded for further proceedings.

6. United States v. Trujillo, Ninth Circuit: Appellant was convicted of conspiracy to possess and possessing with intent to distribute cocaine. The district court erred in denying appellant’s second motion under 18 U.S.C. § 3852(c)(2) to reduce his sentence, as there is no jurisdictional bar to entertaining a second motion. Further, the court erred in failing to explain at all its rejection of appellant’s arguments based on all of the factors in 18 U.S.C. § 3553(a). For these reasons, the district court’s order was vacated and the case remanded.

7. United States v. Zehrung, First Circuit: Appellant pled guilty to violating the federal healthcare fraud statute. Her sentence was enhanced under U.S.S.G. § 3B1.3 for abusing a position of trust. Because the record does not reveal the basis for this enhancement, remand was required for further findings about whether the enhancement applies.

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