Conviction for Attempting to Vacate ACCA Sentence Based on False Expungement of Prior Affirmed
U.S. v. Smith, 2008 WL 2699388 (7/11/08) (Published) - The defendant was convicted of 18 U.S.C. § 1623(a) for attaching a false document to a federal court motion. He attached a bogus state court order expunging a conviction to a 2255 motion and asserted that his sentence pursuant to the Armed Career Criminal Act should be vacated due to the alleged expungement.
The warrant to search a home, which noted a detached garage apartment, was not overbroad, even though it did not note the garage had a different address from the home address listed on the warrant. The officers reasonably failed to appreciate during their execution of the warrant that the warrant described the premises too broadly.
It was okay to introduce the defendant's statement in a taped prison call conversation that he was an armed career criminal. The statement showed the materiality of the false document and the defendant's motive. Troublingly, the 10th also agrees with the government's argument that the defendant "can't claim unfair prejudice for words he himself chose to use." Also troublingly, the 10th holds the defendant waived a challenge to the admission of another taped statement because he told the court he had no other objections to the recorded conversations and, [the 10th hints this would be enough], he affirmatively used the evidence, although he did not introduce it into evidence. The reasonable doubt instruction that said the defendant started off with a "clean slate" [which the defendant said implied he was on equal footing with the government] and that used the "hesitate to act" language [ unlike the criticized "willing to act" language] was okay. The d.ct. did not have to give the requested theory of defense instruction [that someone else had filed the document unbeknownst to him] because other instructions required a jury finding of knowledge of the falsity of the document. The 3-level enhancement for substantial interference with the administration of justice under § 2J1.3(b)(2) applied where the state court held a hearing to unseal the file regarding the supposedly expunged conviction, even though the evidence of the actual expenditures for the hearing "may have been limited." The 10th could not review whether the hearing was motivated simply by federal investigators because that determination required factual determinations that were not made because the defendant failed to raise the challenge below.
The warrant to search a home, which noted a detached garage apartment, was not overbroad, even though it did not note the garage had a different address from the home address listed on the warrant. The officers reasonably failed to appreciate during their execution of the warrant that the warrant described the premises too broadly.
It was okay to introduce the defendant's statement in a taped prison call conversation that he was an armed career criminal. The statement showed the materiality of the false document and the defendant's motive. Troublingly, the 10th also agrees with the government's argument that the defendant "can't claim unfair prejudice for words he himself chose to use." Also troublingly, the 10th holds the defendant waived a challenge to the admission of another taped statement because he told the court he had no other objections to the recorded conversations and, [the 10th hints this would be enough], he affirmatively used the evidence, although he did not introduce it into evidence. The reasonable doubt instruction that said the defendant started off with a "clean slate" [which the defendant said implied he was on equal footing with the government] and that used the "hesitate to act" language [ unlike the criticized "willing to act" language] was okay. The d.ct. did not have to give the requested theory of defense instruction [that someone else had filed the document unbeknownst to him] because other instructions required a jury finding of knowledge of the falsity of the document. The 3-level enhancement for substantial interference with the administration of justice under § 2J1.3(b)(2) applied where the state court held a hearing to unseal the file regarding the supposedly expunged conviction, even though the evidence of the actual expenditures for the hearing "may have been limited." The 10th could not review whether the hearing was motivated simply by federal investigators because that determination required factual determinations that were not made because the defendant failed to raise the challenge below.
posted by Anonymous at 4:44 PM
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