Motions to Suppress and Dismiss Indictment Properly Denied; On Gov't's Cross-Appeal, Gov't Failed to Prove Prior CA Conviction was a Felony
US v. Sierra-Estrada, 2007 WL 2827694 (10th Cir. Oct. 1, 2007) (unpublished): Defendant convicted of conspiring to distribute meth and received mandatory minimum ten years' imprisonment. Defendant appealed (1) his motion to suppress inculpatory statements he made to Federal Bureau of Investigation (FBI) agents, (2) his motion to dismiss the indictment based on the government's deportation of a material witness, and (3) his motion for a mistrial based on prosecutorial misconduct during the rebuttal portion of the government's closing argument. The government cross-appealed his sentence, contending he should have received a 20-year sentence under 21 U.S.C. § 841(b)(1)(A). The COA affirmed.
The motion to suppress was properly denied because Defendant's asking FBI agents whether he could get a lawyer in the future was not an invocation of his right to counsel.
Dismissal of the indictment was properly denied because district court found there was no bad faith in the deportation of the material witness and the defendant agreed to allow admission of the matwit's exculpatory statements in the FBI reports at trial, so the deportation was not a due process or compulsory process clause violation. Besides the other evidence was overwhelming and having the mat wit there probably wouldn't have made a difference.
The prosecutorial misconduct involved the prosecutor invoking President Reagan (whose funeral was held the day after closing arguments). He stated: "Tomorrow, our nation lays to rest President Reagan. Those of you who were alive during the presidency will remember he often talked about America being a shining city on the hill. We stand for something. We stand for the right to have a jury trial when you're accused by the United States of America of a crime. That doesn't mean that the jury trial has to find beyond any doubt that you're guilty. It's beyond a reasonable doubt. Your duty, as you retire to deliberate, is to be part of that city on the hill. Tell Sierra-Estrada that coming to our country to deal methamphetamine, to deal heartache, to deal heartbreak, to deal destruction is wrong and we will not stand for it." Even though the comment arguably invoked "ethnic innuendo," the COA rejected the argument that harmless error did not apply. In light of the overwhelming evidence, the comment -- whether or not improper -- was harmless beyond a reasonable doubt.
But, on the cross-appeal, the defendant keeps his 10-year sentence, rather than the 20 years the government wanted. The government contended defendant had a prior felony conviction for violating Cal. Health & Safety Code §11352. At sentencing, the government presented (1) the original felony complaint alleging that defendant violated Cal. Health & Safety Code §§ 11351 and 11352; (2) the information charging him with a violation of § 11352; (3) the docket report showing that he pleaded guilty to § 11352; (4) the disposition record showing that he pleaded guilty to § 11352; and (5) a California booking photograph of him. The district court questioned whether the prior conviction was a felony, noting that the word "felony" was crossed out on some crucial documents and the sentence was misdemeanor in nature -- 49 days imprisonment and probation -- and ultimately concluded that the prior conviction was not proven to be a felony. The COA agreed.
Notably, the COA observes in footnote 2 that the government's opening brief in its cross-appeal is "rife with error." It mis-cited the statute of the defendant's prior conviction and tried to rely on a document that had not been introduced into evidence below.
The motion to suppress was properly denied because Defendant's asking FBI agents whether he could get a lawyer in the future was not an invocation of his right to counsel.
Dismissal of the indictment was properly denied because district court found there was no bad faith in the deportation of the material witness and the defendant agreed to allow admission of the matwit's exculpatory statements in the FBI reports at trial, so the deportation was not a due process or compulsory process clause violation. Besides the other evidence was overwhelming and having the mat wit there probably wouldn't have made a difference.
The prosecutorial misconduct involved the prosecutor invoking President Reagan (whose funeral was held the day after closing arguments). He stated: "Tomorrow, our nation lays to rest President Reagan. Those of you who were alive during the presidency will remember he often talked about America being a shining city on the hill. We stand for something. We stand for the right to have a jury trial when you're accused by the United States of America of a crime. That doesn't mean that the jury trial has to find beyond any doubt that you're guilty. It's beyond a reasonable doubt. Your duty, as you retire to deliberate, is to be part of that city on the hill. Tell Sierra-Estrada that coming to our country to deal methamphetamine, to deal heartache, to deal heartbreak, to deal destruction is wrong and we will not stand for it." Even though the comment arguably invoked "ethnic innuendo," the COA rejected the argument that harmless error did not apply. In light of the overwhelming evidence, the comment -- whether or not improper -- was harmless beyond a reasonable doubt.
But, on the cross-appeal, the defendant keeps his 10-year sentence, rather than the 20 years the government wanted. The government contended defendant had a prior felony conviction for violating Cal. Health & Safety Code §11352. At sentencing, the government presented (1) the original felony complaint alleging that defendant violated Cal. Health & Safety Code §§ 11351 and 11352; (2) the information charging him with a violation of § 11352; (3) the docket report showing that he pleaded guilty to § 11352; (4) the disposition record showing that he pleaded guilty to § 11352; and (5) a California booking photograph of him. The district court questioned whether the prior conviction was a felony, noting that the word "felony" was crossed out on some crucial documents and the sentence was misdemeanor in nature -- 49 days imprisonment and probation -- and ultimately concluded that the prior conviction was not proven to be a felony. The COA agreed.
Notably, the COA observes in footnote 2 that the government's opening brief in its cross-appeal is "rife with error." It mis-cited the statute of the defendant's prior conviction and tried to rely on a document that had not been introduced into evidence below.
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