Reversals of convictions because the government’s evidence at trial was not sufficient to sustain a conviction, despite a jury finding otherwise, are rarest of appellate victories. They are also the sweetest because the result is not a remand for a retrial, but a remand for the entry of a judgment of acquittal. Given this, it is surprising that there have recently been two such reversals this month. In the second of the two, a writeup of the first is coming soon, Daniel Blue, had his two convictions for possession with intent to distribute 100 grams or more of herion and conspiracy to commit the same vacated.
The third level for acceptance of responsibility is interesting – it’s one area where some courts have held the government has pretty much unfettered discretion to decide whether or not it should apply. Basically, a person is supposed to get the third level only if she’s pled guilty early enough to keep the government from working. Though some U.S. Attorney’s offices are more or less stingy about how early is early enough.
Regardless, it can be hard to overcome an unreasonable government position on the applicability of the third-level for acceptance.
Which is why I was glad to see United States v. Castillo – which challenges the sovereignty of the government’s decisionmaking about the third level and its applicability. Good stuff there.
To the victories!
1. United States v. Alejandra-Montanez, First Circuit: Appellants were convicted of criminal conspiracy charges for importing cocaine. Because of recent amendments to the sentencing guidelines that retroactively reduced most drug quantity base offense levels, the case was remanded for reconsideration of Appellants’ sentences.
Defense Attorneys: David A.F. Lewis, Leslie W. O’Brien, and Joshua L. Gordon
2. United States v. Martinez-Rodriguez, First Circuit: Appellants were convicted of drug and firearms offenses. Appellant Rodriguez’s conviction for the drug offense was reversed because the evidence was insufficient to connect him to Appellant Santini’s possession of narcotics. And the evidence connecting Appellant Santini to Appellant Rodriguez’s possession of a firearm was also insufficient, so that conviction was reversed as well. The only evidence of a connection between Appellants, who are brothers-in-law, was that they had been in a car together when the car was stopped. But the lack of evidence about the full nature of their relationship, of any plan they had to carry out a drug-trafficking offense, and of their prior dealings with each other was insufficient to show that the two had the requisite knowledge of the other’s offense.
There’s been a lot in the circuits in the last week, but perhaps the most surprising bit is that the Seventh Circuit issued four opinions on supervised release conditions.
Supervised release may not be the sexiest of issues, but, especially in child pornography cases, it matters a lot. I’m not sure what’s in the water in Chicago, but whatever it is reaffirms that these conditions need to be narrowly tailored and properly justified.
To the victories!
Last week was a busy week in the federal circuits. There’s a lot there to be interested in, especially if you have a case at the intersection of mental health issues and the law.
If, however, your interests are a bit more prosaic, you might want to read United States v. Ward. There, the person accused was convicted of defrauding different people than the indictment alleged he defrauded.
Perhaps our nation’s circuit court judges took it easy last week because of the inauguration, or Martin Luther King Jr. Day, but there’s only one case where a defendant won in a published opinion in a federal appellate court.
That said, it’s a great win — sufficiency of the evidence reversal from the Eleventh Circuit.
In other news, vaguely related to this blog, I was quoted in the Baltimore Sun, talking about the prospects for Supreme Court review of a Fourth Circuit case involving a federal habeas challenge to a state conviction.
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.
Five partners at Ernst & Young – Robert Coplan, Martin Nissenbaum, Richard Shapiro, and Brian Vaughn, and Charles Bolton – were charged with a number of tax crimes in federal court in New York, specifically tax evasion, conspiracy to defraud the United States, and lying to the IRS. The Second Circuit said that the government didn’t prove that two of the men were guilty and send the case back.
Ernst & Young had developed a number of tax shelters. Tax shelters – to be clear – are not themselves necessarily legal or illegal. As the jury was instructed, “it depends on the facts.”
There were five tax shelters at issue. The Second Circuit, in United States v. Coplan, described the tax shelter that was the basis of the tax evasion count this way:
This week’s wins cover three circuits and four diverse areas of law.
Particularly interesting (to me) are the Fourth Circuit’s opinion holding that it may not be a crime to steal the identity of a corporation. It feels like corporate personhood and its limits are popping up in all sorts of ways these days.
The Eighth Circuit has an interesting jury instruction issue in a sexual assault case, and, remarkably, the First Circuit has a remand based on the sufficiency of the evidence in a marijuana conspiracy case. A good set of wins all around.
One of the most disturbing trends in federal law enforcement, is the way the criminal law is being used to regulate business practices.
If someone commits a substantial fraud – that’s an appropriate basis for a prosecution. But we shouldn’t put people in prison just because something bad happens in business.[FN1]
The Sixth Circuit’s opinion in United States v. Parkes is a good example of why prosecution shouldn’t be the best option for a bad business decision (as opposed to, say, regulatory enforcement action, or a civil suit).