Life Sentence, Convictions Affirmed in Drug and Firearms Case
U.S. v. Portillo-Quezada, ___F.3d___, 2006 WL 3423439 (Nov. 29, 2006)
D was convicted of drug, conspiracy and firearm offenses after trial with two co-defendants. He raised both trial and sentencing errors on appeal.
1. It was invited error to proceed to trial after two co-Ds appeared for voir dire in prison clothes; court asked if all parties wanted to proceed in light of the fact that the others’ civilian clothes had not yet arrived and all said they did. Additionally, court dispelled any prejudice and determined that the jury was uninfluenced by seeing the co-Ds in prison clothes.
2. Court did not abuse its discretion in denying mistrial motion for prosecutor’s questions on voir dire re: appearance of criminals. While prosecutor’s remarks appealing to stereotypes were improper, the district court’s curative action, and the fact that the prosecutor’s remarks did not refer to D’s characteristics (though they did to the co-Ds’) did not make the trial unfair to D.
3. Trial court ruling under 404(b) admitting evidence that D was involved in the uncharged murder of another as intrinsic to the conspiracy, was not an abuse of discretion. It linked co-D co-conspirators into the conspiracy and was evidence of the conspiracy itself (murder victim was a co-conspirator). Moreover, while graphic, the evidence was not unduly prejudicial.
4. D was sentenced under the murder enhancement guidelines to life. There was no Ex Post Facto violation in sentencing him under post-Booker advisory guideline when his offense was committed pre-Booker and he might have received a sentence lower than the statutory maximum pre-Booker. Sentence was reasoned and reasonable.
D was convicted of drug, conspiracy and firearm offenses after trial with two co-defendants. He raised both trial and sentencing errors on appeal.
1. It was invited error to proceed to trial after two co-Ds appeared for voir dire in prison clothes; court asked if all parties wanted to proceed in light of the fact that the others’ civilian clothes had not yet arrived and all said they did. Additionally, court dispelled any prejudice and determined that the jury was uninfluenced by seeing the co-Ds in prison clothes.
2. Court did not abuse its discretion in denying mistrial motion for prosecutor’s questions on voir dire re: appearance of criminals. While prosecutor’s remarks appealing to stereotypes were improper, the district court’s curative action, and the fact that the prosecutor’s remarks did not refer to D’s characteristics (though they did to the co-Ds’) did not make the trial unfair to D.
3. Trial court ruling under 404(b) admitting evidence that D was involved in the uncharged murder of another as intrinsic to the conspiracy, was not an abuse of discretion. It linked co-D co-conspirators into the conspiracy and was evidence of the conspiracy itself (murder victim was a co-conspirator). Moreover, while graphic, the evidence was not unduly prejudicial.
4. D was sentenced under the murder enhancement guidelines to life. There was no Ex Post Facto violation in sentencing him under post-Booker advisory guideline when his offense was committed pre-Booker and he might have received a sentence lower than the statutory maximum pre-Booker. Sentence was reasoned and reasonable.
posted by Anonymous at 9:46 AM
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