Wednesday, February 26, 2014

Plain Error Argument Waived Because Not Made in Brief-in-Chief

U.S. v. Rivera, 2014 WL 486218 (2/7/14) (N.M.) (unpub'd) - Troublingly the Court says Mr. Rivera waived his plain-error argument because he didn't mention it in his opening brief, even though he did raise it in his reply brief after the government contended the issue wasn't preserved below. The district court erred when it refused to allow the defense to impeach the government's witness with a prior admission that she possessed a handgun when she denied on the stand that she had made such an admission. The judge thought the question was about a prior firearm possession conviction. Nonetheless the error was harmless in light of the other evidence against Mr. Rivera, government witness testimony that the witness had possessed a firearm and that the impeachment was on a trivial point. The Court notes the Allen instruction was less coercive than some because it called on each juror, not just the ones in the minority, to reconsider his or her views.