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September 30, 2014 CJS: Around the Circuit

U.S. Court of Appeals for the First Circuit

A quarterly case summary digest of recent federal circuit court opinions

by Sixuan Lu

United States v. Bresil, No. 13-1066 (1st Cir. Sept. 24, 2014) 2014 WL 4744670

Defendant was found in an open boat with other passengers 23 nautical miles off the coast of Puerto Rico and more than 175 nautical miles off the coast of St. Maarten island. The officials reported seeing on the boat one 15-gallon container that was 75 percent full. Because the boat was a hazard to navigation and the officials could not tow it somewhere else, they sunk the boat. The government deported 3 passengers who made un-retracted claims to St. Maarten. Defendant knew that the boat’s fuel usage would be at issue at trial. The government first informed him of its intention to call an expert witness who could testify about the boat’s fuel consumption 5 days before trial. The expert testified that the boat would have traveled at most 2.5 to 3 nautical miles per gallon of gasoline. He was convicted of illegal reentering the United States, and he appealed.

Held: The government’s notice to call an expert witness was untimely but harmless. Defendant’s due process rights were not violated.

At a defendant’s request, the government must give to the defendant a written summary of any expert testimony that it intends to use at trial. See Fed. R. Crim. P. 16(a)(1)(G). To obtain a reversal based on a Rule 16 claim, a defendant has to show prejudice. See United States v. Espinal-Almeida, 699 F.3d 588, 615 (1st Cir. 2012); United States v. Melucci, 888 F.2d 200, 203 (1st Cir. 1989). In this case, the fact that Defendant knew that the boat’s fuel usage would be at issue at trial does not excuse the government of its duty under Rule 16(a)(1)(G) to give timely notice. The government's notice to call an expert witness was untimely because it is unreasonable to expect a defense attorney to obtain an expert 5 days before trial. If the government was right about the amount of fuel on board, the boat had only a fraction of the fuel needed to arrive at St. Maarten. Thus, no defense expert would have challenged the opinion that the defendant would be unable to travel more than 2.5 to 3 nautical miles per gallon.  Therefore, the government's failure to provide timely notice of its expert witness was not prejudicial. Additionally, if evidence is no more than potentially exculpatory, a defendant is only entitled to a new trial if he can show that the government acted in bad faith by destroying the evidence. See Magraw v. Roden, 743 F.3d 1, 8 (1st Cir. 2014). In this case, the evidence in the boat was no more than potentially exculpatory evidence. The boat was also a hazard of navigation preventing it from being towed to another location. Thus, there is no evidence that the government acted in bad faith when it chose to sink the boat. Moreover, a defendant’s due process rights are violated when witnesses are deported only if the deported witnesses would have been material and favorable to the defendant’s defense. See United States v. Valenzuela–Bernal, 458 U.S. 858, 873-74 (1982). In this case, it is hard to see how Defendant would have been better off with the testimony of the deported witnesses. The circumstances of his capture provided sufficient evidence beyond a reasonable doubt for his illegal reentering.

Ford v. Bender, Nos. 12-1622, 12-2142 (1st Cir. Sept. 24, 2014) 2014 WL 4744669

Appellee, an inmate, was sentenced in state court and placed into the custody of the Department of Correction (“DOC”). While serving his sentence, he was repeatedly housed in the Department Disciplinary Unit (“DDU”), a segregated housing unit, for offenses committed during confinement. In 2003, he was given a disciplinary hearing prior to being placed in the DDU. In 2007, he filed a complaint in the district court regarding his confinement in the DDU. In 2008, the inmate pled guilty to his offenses committed during confinement, and remained in the DDU as a convicted inmate. Later in 2008, he filed his second amended complaint, and the district court denied the DOC officials’ quest for qualified immunity. In 2010, the district court entered declaratory judgment on the inmate’s rights as a pretrial detainee and as a convicted inmate. In 2012, the district court awarded the inmate money damages, and issued two injunctions: (1) ensuring his access to transitional programming for the remainder of his sentence; (2) requiring the DOC officials to deem the 2003 administrative sanction satisfied. And later in 2012, the DOC released him from their custody. The district court also awarded the inmate the attorneys’ fees and costs.

Held: The Court reversed the district court’s decision that the DOC officials had no qualified immunity, reversed the money damages award, vacated the equitable relief, and remanded for reconsideration of a more limited claim of attorneys’ fees and costs.

Under the doctrine of qualified immunity, all state actors are shielded from individual liability for damages except the plainly incompetent and those who knowingly violate the law. See Malley v. Briggs, 475 U.S. 335, 341 (1986). The relevant law is unclear on whether and when to allow an individualized disciplinary sanction for a pretrial detainee’s misconduct. See Bell v. Wolfish, 441 U.S. 520 (1979). In this case, a reasonable official under the unclearly established law would not have understood that holding the inmate in the DDU during his pretrial detention for an offense that occurred during a prior criminal sentence was an unconstitutional violation of his substantive due process rights.  As to the appellee's claim that he was denied procedural due process by not being afforded a second hearing, the court found that the inmate identified no practical purpose for a second and redundant hearing to establish his culpability. A reasonable prison official could have concluded that the 2003 hearing constituted adequate due process. Because the officials did not violate the inmate’s substantive or procedural due process rights, they are entitled to the qualified immunity. The Court reversed the denial of qualified immunity, and therefore reversed the award of money damages.

Additionally, the Constitution confines the jurisdiction of the federal courts to actual cases and controversies. See U.S. Const. Art. III, § 2; Barr v. Galvin, 626 F.3d 99, 104 (1st Cir. 2010). A prisoner’s challenge to prison conditions or policies is generally rendered moot by his or her transfer or release. In this case, the inmate lost any legally cognizable interest in a declaration that DOC’s actions had been unconstitutional or an injunction related to his prior confinement when DOC released him from the custody in 2012. There is no actual cases or controversies to decide nor any meaning meaningful relief to provide. Therefore, the Court vacated the equitable relief.

United States v. Santiago, No. 13-1146 (1st Cir. Sept. 12, 2014) 2014 WL 4494198

Defendant was sentenced after pleading guilty to one count of failing to register as a sex offender. The plea agreement contained a waiver of appeal provision “waiv[ing] and permanently surrender[ing] his right to appeal the judgment and sentence in this case.” At the change of plea hearing, the magistrate judge explained to Defendant the implications of his entering into the agreement and informed him the virtue of the waiver of appeal provision. He confirmed that he understood. The judge found and his attorney confirmed that he was competent to enter the plea. At his sentencing hearing, the judge imposed a number of special sex offender conditions as terms of his supervised release. However, one of the conditions was not announced by the judge at the defendant's sentencing hearing but rather made its first appearance in the written judgment. On appeal, the defendant sought to vacate a series of special sex offender conditions including condition thirteen.

Held: Because Defendant waived his right to appeal all the special sex offender conditions of supervised release, this Court dismiss his appeal on the disputed conditions except for the thirteenth condition, as the defendant had no notice of this condition at the time he agreed to a waiver of appeal. Dismissed in part, vacated in part, and remanded.

When knowing and voluntary, an appellate waiver is generally enforceable except if the waiver would work a miscarriage of justice. See United States v. Rivera–López, 736 F.3d 633, 635 (1st Cir. 2013); United States v. Teeter, 257 F.3d 14, 24–26 (1st Cir. 2001). To invoke the miscarriage of justice exception successfully, there must be an increment of error more glaring than routine reversible error. See United States v. Chambers, 710 F.3d 23, 31 (1st Cir. 2013). In this case, taking into consideration the exchange at the change of plea hearing and the language of the waiver, it is apparent that Defendant’s relinquishing of his appellate rights was knowing and voluntary. The waiver of appeal was unambiguous and the judge sufficiently called the waiver to his attention while making sure that he understood its ramifications. The conditions other than the thirteenth were not so obviously unwarranted as to constitute a miscarriage of justice, so he must be held to his waiver of appeal as to those conditions.

Condition thirteen is a different matter. A criminal defendant enjoys the right to be present at his own sentencing under the Constitution and Federal Rules of Criminal Procedure.  The defendant was denied that right as condition thirteen was first imposed in the written decision, precluding him from arguing that the restriction was not warranted.  When there is a clear conflict between the terms of supervised release issued orally by a judge, and those contained in the written judgment, the oral terms control. Since the alleged error is a constitutional one, the government has the burden of proving beyond a reasonable doubt that the error did not affect the defendant’s substantial rights. See United States v. Sepulveda-Contreras, 466 F.3d 166, 171 (1st Cir. 2006). The government has not done this, so this Court must vacate the condition thirteen.

United States v. Martinez, No. 12-2219 (1st Cir. Aug. 6, 2014) 762 F.3d 127

Defendant had a state conviction of simple assault in 2009 because of offensive touching, and a state conviction for assault and battery in 2010 because of striking his girlfriend. At the time of Defendant’s detention, officers knew that a gang member’s wake had taken place, and were thus on patrol for gang violence. They observed the car in which Defendant was riding leave abruptly as soon as police arrived, running a red light. One officer recognized Defendant as a gang member who had previously been charged with dangerous weapons offenses and with assault and battery. Officers ordered Defendant to keep his hands on the dashboard, but he repeatedly flouted their orders. When Defendant did not respond to an officer’s questions, she searched him and found a loaded firearm. He was subsequently indicted for being a felon in possession of a firearm. He moved to suppress the firearm on the ground that the officers had no reasonable suspicion that he was armed and dangerous when they frisked him. When the district court denied that motion, he entered a guilty plea. The court sentenced him based on the finding that the 2010 conviction constituted a crime of violence under the Sentencing Guidelines. Defendant appealed both the denial of his suppression motion and his sentence.

Held: Because the officers had reason to believe that Defendant was armed and potentially dangerous, the Court affirmed the district court’s denial of his firearm suppression motion. However, the Court found the Defendant's base level of 20 inappropriate, as neither of his prior convictions required the requisite intent or use of violent force necessary to qualify as a crime of violence under the Sentencing Guidelines.

Under the Fourth Amendment, police officers can reasonably search for weapons where they have reason to believe dealing with an armed and dangerous individual. See Terry v. Ohio, 392 U.S. 1, 27 (1968). In this case, the offices had reasonable suspicion of Defendant because of his involvement in past crimes and objective factors. The nature of the occasion, the reaction of a car full of gang members when a police car approached, and the refusal to keep hands visible all pointed toward a reasonable likelihood that Defendant was armed and potentially dangerous. The Court affirmed the district court’s denial of his suppression motion. However, in order to qualify as a crime of violence under the Sentencing Guideline, an offense must include an intent to cause harm and the use of violent force. See U.S.S.G. § 4B1.2(a). The 2010 striking could have occurred without intent, and the assault statute did not require a showing of violent force. Therefore, Defendant’s 2009 and 2010 convictions do not meet the applicable definition under the Guideline.

United States v. Suarez-Gonzalez, Nos. 13–1594, 13–1597 (1st Cir. July 23, 2014) 760 F.3d 96.

Defendant printed a large number of counterfeit money orders on authentic postal money order blanks with authentic USPS equipment. He also recruited accomplices to cash the money orders. He pleaded guilty to his crimes. The district court selectively elaborated a number of factors in 18 U.S.C. § 3553(a) upon Defendant’s background and criminal past to determine the sentence. He challenged his sentence on appeal.

Held: Defendant’s alteration of money orders warranted application of a two-level enhancement. The district court appropriately considered statutory sentencing factors in imposing a substantively reasonable sentence. Affirmed.

A two-level enhancement applies to a defendant possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting. See U.S.S.G. § 2B5.1 (b)(2)(A). When the language of the guideline is plain and unambiguous, the language furnishes the most reliable guide to its interpretation and that is the end of the matter. See United States v. Dixon, 449 F.3d 194, 202-03 (1st Cir. 2006). The rule of lenity generally applies to criminal statutes that are subject to more than one plausible interpretation and demands that the interpretation more favorable to the defendant prevail. See Jones v. United States, 529 U.S. 848, 858 (2000); United States v. Aponte–Guzmán, 696 F.3d 157, 160 (1st Cir. 2012). In this case, the term “counterfeiting device” has a plain, ordinary, and unambiguous meaning: a device used for counterfeiting. There is no ambiguity to apply the rule of lenity. The authenticity of the printing equipment did not diminish the counterfeit nature of the money orders. Thus, the two-level enhancement application was correct.  The Defendant's twenty-one month sentence was also found to be substantively reasonable.  A court is not required to address every factor in 18 U.S.C. § 3553(a). Because selective triage is precisely the expected function of a sentencing court, the district court in this case appropriately considered the section 3553(a) factors. Moreover, if the imposed sentence has a plausible view of the circumstances and its duration is defensible, the defendant will be unable to make the requisite showing of unreasonableness In this case, Defendant’s conduct involved the use of stolen materials to produce numerous counterfeit money orders with accomplices to cash the orders. The punishment comfortably fits the seriousness of the offense.

Sixuan Lu obtained his Bachelor of Law with honors at Zhongnan University of Economics and Law in 2009; Master of Common Law at the University of Hong Kong in 2010; and LLM and JD at the Dedman Law School of Southern Methodist University in 2013.

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This case summary digest was promulgated by the Criminal Justice Section’s Young Lawyers Committee.  Any interpretations of the statutes, regulations, or other law cited; or regarding the courts’ opinions as to the legal issues addressed, are those of the authors and do not necessarily represent the official views of the American Bar Association.

The information provided in this digest is solely for educational and informational purposes, and does not constitute legal advice.  While every effort is being made to ensure that the case law is correct and current, this digest is published on a quarterly basis.  Because the areas of the law being examined are complex, voluminous, and constantly changing, users are cautioned to research and verify the accuracy of the summarized information independently and through an official source.  Links to the official webpage containing the original opinions for each federal circuit are provided with each summary.  Also, the status of the law as to any particular issue may vary from one circuit to the next.  Consequently, users are further cautioned to cross-reference a circuit’s holding with the case law from the user’s own jurisdiction.  The ABA takes no responsibility for any harm resulting from reliance on this digest.