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In United States v. Zuniga the Fifth Circuit remanded the conviction based on improper convictions.

Zuniga was a passenger in his vehicle.  Zuniga and the driver were followed by the police.  The police witnessed the vehicle fail to signal 100 feet continuously before turning left and park in a “disabled only” parking space (these things are law violations in Texas).  The officer who witnessed these violations was undercover and asked another officer to stop the vehicle.  The other officer did not see the law violations but stopped the vehicle anyway.  The driver did not have a license.  Zuniga had city warrants.  Both were arrested.  Zuniga was searched and was found to be in possession of a plastic bag of meth.  His vehicle was searched and a backpack with more meth was found as well as a firearm and holster.

Zuniga moved to suppress the stop and was denied on the grounds of the “collective knowledge doctrine.”  He later pled guilty to one count of Possession with Intent to Distribute 500 grams or More of Meth and Aiding and Abetting while preserving his right to challenge the suppression ruling.

At sentencing the court found Zuniga to be a career offender for his two priors of evading arrest and delivery of a controlled substance.  He was sentenced to 327 months and five years of supervised release.

Zuniga argued that his career offender sentence must be remanded under Johnson v. United States.  Zuniga filed a second supplemental brief based on United States v. Hinkle challenging the Texas Delivery of a controlled substance.  He had also challenged the reasonable suspicion of the stop as well as the application of the collective knowledge doctrine.  His reasonable suspicion arguments and his collective knowledge doctrine arguments were denied and after Beckles v. United States was published, Zuniga conceded that his argument about Johnson v. United States was foreclosed.  However Hinkle explained that Mathis does not allow sentencing courts to look at the actual method of delivery on which a defendant’s conviction was based on for purposes of determining whether the conviction constituted a controlled substance offense under the guidelines.

The government indicated that Zuniga did not raise this argument in the district court and in the opening brief to this court and as such the court should hold that Zuniga forfeited his right to bring this argument citing that Mathis only “reaffirmed” the principle articulated in Descamps.  The Court rejected this argument indicating that Mathis clarified the law on divisibility.  While Descamps was about whether a sentencing court could consult additional documents when a defendant was convicted under an ‘indivisible’ statute, Mathis was concerning “a different kind of alternately phrased law” and held that alternative means do not make alternative elements.  Hinkle then applied Mathis to a Texas Statute.

With that, the forfeiture argument was laid waste to.  The government conceded that the error was plain in this case especially when considering the disparity between the imposed sentence and the applicable guideline range.

The Fifth Circuit Vacated and Remanded.  U.S. v. Zuniga.

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

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In United States v. Cummings, the Second Circuit reversed a conviction because of prejudicial double hearsay.  Cummings was charged with several offenses regarding drugs, firearms and two counts of killing a person during and relation to a conspiracy to distribute cocaine base.  During the trial the government sought to offer evidence that Cummings threatened a cooperating witness because of his cooperation by offering the testimony of that person.  That person was going to testify to the defendant saying that he was going to kill the witness because of the witnesses’ cooperation.  Cummings’ counsel opposed, arguing that the probative value of that evidence was substantially outweighed the prejudicial effect under rule 403 of the Federal Rules of Evidence.  The Trial Court allowed the evidence in subject to a limiting instruction.

During the trial it came out that the witness did NOT actually hear Cummings actually say that he was going to “shoot [the witness] in the face.”  The witness never alleged that Cummings that to him directly, rather he said that to people around the witness.  Defense counsel did not re-raise the request for the limiting instruction and the court did not grant it.  There was no 404(b) instruction either (a 404(b) instruction means in this case that the jury wouldn’t have been allowed to use this threat as evidence that he committed the crimes he was charged with).  The prosecutor said at final argument that Cummings made those threats because he knew the evidence would be damaging to him at trial and that testimony, “was in fact completely devastating proof of [Cummings’] crimes.”

The Jury found Cummings guilty of all counts.

With regard to the hearsay evidence, the court held that the statements of the witness that Cummings didn’t say anything to him directly meant that it was less likely that the witness heard Cummings make the death thread.  So that means that other people heard Cummings say what he said and then told it to the witness.  That created a potential “hearsay within hearsay” problem; the first hearsay issue is when Cummings allegedly told some unknown person that he was going to “shoot [the witness] in the face.”  Then the second statement is when the unknown person told the statement to the witness who testified.

(Remember, under Federal Rule of Evidence 801, Hearsay is an Out of Court Statement offered in court for the truth of the matter asserted).

(A note by Jeremy:  Okay, so when you’re dealing with two levels of hearsay then you have to have either an exception or that it’s not actually hearsay for each one.  You have to deal with each one on its own individually)

The court noted that although the first statement could be deemed “Not Hearsay,” because it is not offered for the truth of the matter asserted but rather for consciousness of guilt OR it could be deemed “Not Hearsay” because it is a statement by a party opponent (as in the case is U.S. v. Cummings and the U.S. is offering the statement).  But even if that clears Cummings stating it to the unknown person, it doesn’t clear the unknown person saying it to the witness.  The government didn’t call the unknown person and the court indicated that the only way that the statement gets in is if it was admitted for its truth.  If it wasn’t admitted for its truth then it wouldn’t be probative of his consciousness of guilt.  So since the second statement from the unknown person to the witness is hearsay without an exception, then it is inadmissible.

The court then weighed whether the admission was harmless error.  Although Cummings did not ask for a limiting instruction, the court determined that the death threat testimony created an undue risk that the jury construed the thread as evidence of Cummings’s murderous propensity.  Second the court did not provide a limiting instruction to the jury about the limited permissible purpose of the death threat testimony.  Third the government’s description of the death threat testimony went beyond the purpose of its admission because of the government’s final argument.  Finally, the hearsay nature of the death threat testimony unfairly prejudiced Cummings and may have affected the jury’s understanding of his testimony.

The second circuit reversed, 15-2035

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

In United States vs. Miller the Third Circuit reversed and remanded a case for re-sentencing for allocution error.

The defendant was convicted of money laundering and mail fraud as well as aiding and abetting, both offenses as a result of insurance claims that the defendant filed concerning damages to his theater business.

During sentencing, the defendant allocuted and the District Court Judge invited the prosecutor to cross examine him during his allocution.

He raised appellate grounds based on the sufficiency of the evidence and errors in allocution.

The Court found that there was sufficient evidence to find Miller guilty of that offenses committed.

With regard to sentencing, the court determined that the prosecution should not be allowed to cross-examine a defendant during allocution and that doing so violated a defendant’s allocution rights.  This met the court’s plain error standard for this case (the allocution error was not raised in the district court) as the court had previously ruled that they must vacate for re-sentencing if the trial court violates the defendant’s right of allocution.

The Third Circuit Reversed, U.S. v. Miller, no. 16-1145

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.

Miguel Bustamante-Conchas was not allowed a chance to allocute before being sentenced.  As you may know, Allocution is the right of a defendant in a criminal case to say anything to the Judge that they wish to say with the hopes that the Judge would impose a lesser sentence.

The right to allocute is in the Federal Rule of Criminal Procedure 32( i)(4)(A)(ii) which says that federal courts must  “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”

The U.S. Court of Appeals for the Tenth Circuit, sitting en banc (where all the judges hear the case and decide instead of a panel) held that Bustamante-Conchas had been denied the right to allocate. Since he did not object at sentencing, the Court had to decide whether this was “Plain Error.”  In this case the court wrote that Plain error is shown where there is an  “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings[.]”

The first two prongs of that test were easily satisfied.  The court said, “a complete denial of allocution thus satisfies the first and second prongs of plain-error review.”

On the third prong, Tenth Circuit held that defendants need only show that “there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” A reasonable probability, should not be confused with, “a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” Rather, the court said that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.”

On this, the court held that “without some exceptionally good reason to doubt that allocution would have mattered, the complete denial of a defendant’s right to allocute raises a reasonable probability of a lesser sentence,” adding “just as the Guidelines are ordinarily expected to have some impact on a sentence, there is at least a reasonable probability that allocution matters in the usual case.”  Even more importantly, the court held defendants “need not identify the particular statements they wished to make” to show prejudice.

There are some situations where a defendant will not be able to show prejiduce with the denial of an allocution such as a mandatory minimum or a sentence pursuant to Fedaral R. Crim P. 11 11(c)(1)(C), or certain types of violations of supervised release cases.

The court also overruled its prior cases which held that a “defendant must proffer an allocution statement to obtain relief.” The court did so because “accepting a proffered allocution statement would violate the fundamental tenet that appellate courts will not consider material outside the record before the district court.” Also, “appellate courts are in a poor position to assess an allocution statement.”

In refusing to require a proffer of what the defendant’s allocution would have been to demonstrate prejudice, the Tenth Circuit created a split with the Fifth Circuit which specifically requires such a statement as a precondition to being afforded relief. United States v. Palacios, 844 F.3d 527, 532-33 (5th Cir. 2016) (collecting cases).

Bustamate-Conchas’s sentence was accordingly reversed, and the case was remanded for resentencing. See: United States v. Bustamate-Conchas, No. 15-2025 (10th Cir. 2017).

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Have you or a loved one been charged with or convicted of a federal crime? You need an experienced Federal Defense Lawyer who can help fight for your freedom. Because we are good at what we do, we have clients from all over the country to count on us to provide them with competent and reasonably priced services.

The law office of Jeremy Gordon is dedicated and focused on powerfully and effectively representing our clients. We look forward to the opportunity to discuss your case with you. Contact us today for a free consultation and initial case review at 972-483-4865 or email us at [email protected]. Payment plans available.