Wednesday, September 12, 2012

Following Remand, Tenth Reaffirms Carjacking and Related Convictions


US v. Pablo, No. 09-2021 (NM, 9/6/12 - On remand from the Supreme Court for reconsideration in light of that court’s decision last term in Williams v. Illinois, affirming the admission of testimony of a DNA expert who had nothing to do with any of the underlying testing. The Tenth again affirms defendant’s convictions for vaginal rape, kidnaping, aggravated assault and carjacking. Held: (1) admission of expert testimony that DNA and serology testing, done by persons other than the witness, found defendant’s DNA in victim’s vaginal swabs and underwear was not plainly erroneous, given how fractured the opinions in Williams were. Even if it was, the error did not affect defendant’s substantial rights because even he admitted having had sex with the victim; (2) no deprivation of defendant’s right to present a defense where govt suggested that defense witnesses, who were present during the attack, might incriminate themselves and be subject to prosecution, and therefore needed to be advised about their Fifth Amendment rights to remain silent, since court appointed counsel for each witness, who invoked the privilege and refused to testify after conferring with counsel; (3) no error in excluding evidence under Fed.R.Evid. 412 that victim had been seen at least partially nude earlier in the evening with other guys, and that she had rubbed codefendant’s leg in a sexually suggestive manner prior to defendant having sex with her, since the evidence fit none of 412's exceptions to exclusion of such evidence, especially since defendant’s claim of consensual sex was clearly contradicted by evidence of victim’s pretty extensive vaginal-area injuries.