Evidentiary and Booker Issues
U.S. v. Yazzie, 2005 WL 1189822 (5/20/05)(en banc) - The 10th rejected the defendant's Booker argument. There was no constitutional error because the district court's sentence based on the two level enhancement was the same amount of time as the highest end of the lower range that was determined solely by the defendant's admissions. The non-constitutional plain error did not warrant reversal because the 4th prong of the test was not met, despite the sentence at the bottom of the range. The defendant had not met his burden to show the d.ct. would have sentenced him differently under an advisory guideline regime since the district court already considered and rejected many of the ยง 3553(a) factors, apparently when it rejected his downward departure motion [which the district court evaluated under the mandatory regime].
The 10th also affirmed the d.ct.'s denial of a motion to withdraw the plea because counsel had thoroughly reviewed with the defendant his options prior to the guilty plea.
U.S. v. Dowlin, 2005 WL 1155882 (5/17/05) - It was error for the d.ct. to exclude on hearsay grounds third-party statements regarding the validity of a gold certificate that the investment fraud defendant was accused of falsely claiming was valid. The statements were not introduced to prove their truth but the basis of the defendant's belief in the certificate's authenticity. But, the error was, alas, harmless. Preservation alert! Simply offering evidence is not enough to preserve the issue of its exclusion unless the defendant objects to the exclusion and explains why the evidence is admissible to the d.ct. Exclusion of other evidence was okay because it was irrelevant. It was also not error to deny a continuance to allow testimony because the defendant was not diligent in obtaining the witness sooner, a continuance would have caused lots of inconvenience and the testimony wasn't all that important.
The 10th disapproved of a portion of the reasonable doubt instruction that said: "if you view the evidence as reasonably permitting two inferences , innocence or guilt, you should choose innocence." The instruction suggests the preponderance of the evidence standard is relevant. However, no reversal because the instruction as a whole left the jury with the correct impression. It was okay to use "should" in one sentence and to use the terms "not guilty" and "innocent" interchangeably. Viewed as a whole the instruction properly required the jury to find intent to defraud.
On the Booker front, the constitutional error was not a structural error. The defendant had to show prejudice under plain error because the defendant did not object to the facts on which her sentence was based, ample evidence supported the sentence, the defendant did not identify mitigating evidence the d.ct. failed to consider at sentencing, the statement of the d.ct. recognizing its limited discretion did not indicate an inclination to impose a lower sentence and there was nothing peculiar in the facts of the case to show a sentencing process breakdown.
The 10th also affirmed the d.ct.'s denial of a motion to withdraw the plea because counsel had thoroughly reviewed with the defendant his options prior to the guilty plea.
U.S. v. Dowlin, 2005 WL 1155882 (5/17/05) - It was error for the d.ct. to exclude on hearsay grounds third-party statements regarding the validity of a gold certificate that the investment fraud defendant was accused of falsely claiming was valid. The statements were not introduced to prove their truth but the basis of the defendant's belief in the certificate's authenticity. But, the error was, alas, harmless. Preservation alert! Simply offering evidence is not enough to preserve the issue of its exclusion unless the defendant objects to the exclusion and explains why the evidence is admissible to the d.ct. Exclusion of other evidence was okay because it was irrelevant. It was also not error to deny a continuance to allow testimony because the defendant was not diligent in obtaining the witness sooner, a continuance would have caused lots of inconvenience and the testimony wasn't all that important.
The 10th disapproved of a portion of the reasonable doubt instruction that said: "if you view the evidence as reasonably permitting two inferences , innocence or guilt, you should choose innocence." The instruction suggests the preponderance of the evidence standard is relevant. However, no reversal because the instruction as a whole left the jury with the correct impression. It was okay to use "should" in one sentence and to use the terms "not guilty" and "innocent" interchangeably. Viewed as a whole the instruction properly required the jury to find intent to defraud.
On the Booker front, the constitutional error was not a structural error. The defendant had to show prejudice under plain error because the defendant did not object to the facts on which her sentence was based, ample evidence supported the sentence, the defendant did not identify mitigating evidence the d.ct. failed to consider at sentencing, the statement of the d.ct. recognizing its limited discretion did not indicate an inclination to impose a lower sentence and there was nothing peculiar in the facts of the case to show a sentencing process breakdown.
posted by Anonymous at 2:38 PM
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