Meetings between the principals after the events of the case do not in themselves present an issue of possible cover-up for trial; communications before the events of the case do not in themselves present an issue of conspiracy for trial, as the wrong was likely not planned in advance.
Judges shouldn't be asked to hunt for truffles.
http://media.ca1.uscourts.gov/pdf.opinions/17-2076U-01A.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Showing posts with label Conspiracy. Show all posts
Showing posts with label Conspiracy. Show all posts
Fifth Circuit: Stephanie Odle v. Wal-Mart Stores, Incorporated
Dissent from denial: ln the caselaw, where parties voluntarily dismiss the action, the court does not have sufficient authority over the case to consider whether other intervenors should be added.
Statement in support of denial of en banc: Minor exceptions from exigency.
http://www.ca5.uscourts.gov/opinions/pub/16/16-10347.CV1.pdf
First Circuit: US v. Acevedo-Hernandez
Sufficient evidence for conspiracy.
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
In case of alleged judicial bribery, referring to the injustice of the underlying proceeding in opening and closing statements of the bribery trial would not be sufficiently plain error to justify reversal.
Even if evidence was more prejudical than probative, harmless error, given the weight of the evidence.
As co-conspirator would have been subject to a wide variety of challenges on cross-examination, court's granting of 5th amendment privilege as to questions that did not directly jeopardize the co-deft was not a violation of the Sixth Amendment right to compulsory process.
Any sentencing errors harmless. No cumulative error.
http://media.ca1.uscourts.gov/pdf.opinions/15-1763P-01A.pdf
First Circuit: US v. Pinkham
Exception claiming that drug amount was miscalculated does not properly preserve a claim that the amount of drugs personally consumed by the deft should not have been included in the total.
Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.
Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.
http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf
Neither precedent nor lenity argues that the personal consumption of the deft should reduce the drug amount calculations for the conspiracy, as the deft's consumption is part of the scope of the conspiracy.
Given that the penalty for the prior conviction for driving without a licence is more similar to that for driving with a suspended licence than that for speeding, the present sentencing court did not plainly err in grouping it with offenses of the former category.
http://media.ca1.uscourts.gov/pdf.opinions/17-1664P-01A.pdf
DC Circuit: USA v. Gregory Sitzmann
Consideration of extraterritorial conduct did not violate the presumption against extraterritoriality, given the domestic elements of the conspiracy.
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Assuming manufactured venue is a thing, agents' instructions to wire funds to DC was not an impermissible creation of venue.
As venue was not objected to prior to the close of the prosecutions case in chief, no error in court's holding that it was not an issue for the finder of fact.
No Brady claim in late release of co-conspirator's grand jury testimony, as insufficiently exculpatory.
Purportedly false evidence presented insufficiently prejudicial.
Introduction of co-conspirator's guilty plea not plain error, as insufficiently prejudicial.
No ineffective assistance.
https://www.cadc.uscourts.gov/internet/opinions.nsf/38541443F92BCBB4852582BB00514136/$file/15-3074.pdf
Seventh Circuit: USA v. Jose Maldonado
Sufficient evidence for conspiracy, as the distrustful arms-length relationship with the drug supplier was extensive, and occasionally worked on credit; a second connection between two dealers described as brotherly in fact speaks to the closeness of the conspirators.
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Multiple conspiracies instruction proper, as there was no necessary hub to the group.
No error in denial of meeting-of-the-minds instruction, as distrust among the participants did not negate the business purpose of their association.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-21/C:17-1402:J:Bauer:aut:T:fnOp:N:2174265:S:0
Fifth Circuit: USA v. Karl Scott
@justicewillett
Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.
Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
Conspiracy for Possession with Intent to Distribute doesn't require actual or constructive possession; it suffices that the deft formed an agreement for the others to possess the drugs, knew of that agreement, and voluntarily participated in it.
Aiding and Abetting on the same charge is established when deft associates with a criminal venture, ensures its occurrence, purposefully participated in the venture, and sought to make it succeed.
http://www.ca5.uscourts.gov/opinions/pub/17/17-40552-CR0.pdf
DC Circuit: US v. Calvin Stoddard
Description of the investigation to this point and agent's general expertise established sufficient necessity for the wiretap order.
Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.
Sufficient evidence for conspiracy, despite unreliable witness.
Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.
Each member of the conspiracy must have sufficient knowledge or foreseeable understanding of drug amounts triggering mandatory minimums for those minimums to apply. Circuit split flagged.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf
Insufficient evidence for money-laundering conviction, as the vehicle purchase was open, and there was insufficient evidence of intentionally promoting the illegal activity.
Sufficient evidence for conspiracy, despite unreliable witness.
Deft decision not to testify waived challenge to ruling that he could be impeached on cross with prior conviction.
Each member of the conspiracy must have sufficient knowledge or foreseeable understanding of drug amounts triggering mandatory minimums for those minimums to apply. Circuit split flagged.
https://www.cadc.uscourts.gov/internet/opinions.nsf/CF9C2E37DB18AFB9852582AD015-306054B206/$file/0-1736057.pdf
Fourth Circuit: US v. Darra Lee Shephard
No error in sentencing determination that vulnerable victims were targeted by telemarketing scheme and deft was aware of theiir vulnerability, as scheme targeted those who had already fallen for it once.
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
No error in loss calculation that incorporated uncharged wire transfers, as they were clear from the face of the indictment.
No error in sentencing finding that deft was culpable for conspiracy until 2015, despite ending work there in 2012, as deft stipulated to involvement in the facts incorporated in the plea, and, in the alternative, exit wasn't strong enough to end conspiracy liability.
http://www.ca4.uscourts.gov/opinions/174148.P.pdf
Eleventh Circuit: US v. Ramon Cobena Duenas
Sufficient evidence for a courier's conviction for counterfeiting conspiracy under the prudent smuggler doctrine where the prosecution demonstrates a plenitude of contacts among the organization, the courier evinces an awareness of the unlawful nature of the operation, and the courier's actions are critical to the success of the operation.
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
http://media.ca11.uscourts.gov/opinions/pub/files/201710509.pdf
Eleventh Circuit: US v. Wenxia Man
Conspiracy requiring a third participant is sufficiently well-developed if the others are planning to find an alternative to agreement with the necessary participant
Deft's awareness of illegal nature of the weapons sale activity evinced sufficient specific intent to violate the licensing requirements of the Act.
Eagerness to do the transaction and the delicate and furtive nature of the conversations established sufficient evidence for the finding that deft was predisposed to the crime and therefore not entrapped.
Co-conspirator hearsay properly admitted. Court could properly find an unidentified email address a co-conspirator. Admission of contemporaneous uncharged bad acts proper, as sufficiently entwined.
Sentence reasonable -- deft's US presence made her invaluable; no discriminatory error in court's sentencing finding that deft was faithful to her native country.
No plain error in Brady violation, given insufficient record/proffer.
http://media.ca11.uscourts.gov/opinions/pub/files/201615635.pdf
Deft's awareness of illegal nature of the weapons sale activity evinced sufficient specific intent to violate the licensing requirements of the Act.
Eagerness to do the transaction and the delicate and furtive nature of the conversations established sufficient evidence for the finding that deft was predisposed to the crime and therefore not entrapped.
Co-conspirator hearsay properly admitted. Court could properly find an unidentified email address a co-conspirator. Admission of contemporaneous uncharged bad acts proper, as sufficiently entwined.
Sentence reasonable -- deft's US presence made her invaluable; no discriminatory error in court's sentencing finding that deft was faithful to her native country.
No plain error in Brady violation, given insufficient record/proffer.
http://media.ca11.uscourts.gov/opinions/pub/files/201615635.pdf
Eighth Circuit: United States v. Kenneth Borders
Conspiracy, Crim, Accomplice, FRE
Different theories of crime on special verdict do not necessarily indicate separate conspiracies.
Rental of unit and possession of key insufficient for accomplice liability where there was no proof that the deft knew the items stored there to be stolen.
Admission of evidence about civil commercial violations was harmless error.
No abuse of discretion in limiting cross for cooperating witnesses.
Admission of earlier plea agreement as evidence of overt act wasn't double jeopardy.
Summary timeline did not violate FRE.
Sentencing correct on merits.
United States v. Kenneth Borders
Second Circuit: U.S. v. Gabinskaya
Corporations, Fraud, Conspiracy, Insurance
In state litigation involving no-fault insurance, courts may look beyond the formal indicia of ownership when attempting to determine whether a corporation has been fraudulently incorporated.
Testimony relating to the conspirators' legal advice doesn't speak to knowing participation in the scheme.
U.S. v. Gabinskaya
First Circuit: US v. Ortiz-Islas
Souter, Crim, Conspiracy, FRE, Sentencing
Plan to sell drugs in the jurisdiction was a second plan within the same conspiracy, as opposed to a second conspiracy.
Post-indictment evidence was sufficiently probative to be allowed.
Courts potential assignment of minimum sentence was at most harmless error.
No abuse of discretion in disparate sentences for co-conspirators.
US v. Ortiz-Islas
DC Circuit: USA v. Gerry Burnett
Fourth Amendment, FRE, Sentencing, Conspiracy
Probable cause for search and stop of car, given GPS data and ongoing investigation, despite the fact that the trip was atypical.
Accidentally destroyed evidence was in no way exculpatory.
Given association of the defts outside the house, reliance on GPS data from inside of a house to establish probable cause was not constitutional error.
Admission of prior bad acts harmless.
Calculation of drug amounts included some from before one deft joined the conspiracy -- remanded for resentencing.
USA v. Gerry Burnett
Eighth Circuit: United States v. Demetrius Colbert
Crim, Fourth Amendment, FRE, Conspiracy, Sentencing
Sufficient showing of alternative means before wiretap.
Connection to the person sufficed for search warrant for house.
No abuse of discretion in refusing to allow evidence of circumstances in a similar police search.
Conspiracy counts appropriately joined to firearms counts, as they arose from same conspiracy.
Sufficient evidence.
Life sentence procedurally & substantively reasonable.
United States v. Demetrius Colbert
Second Circuit: United States v. Bouchard
Crim, White Collar, Fraud
Deceiving a lender which is not federally insured without the intent to deceive its federally insured parent does not violate the statute prohibiting lying to federally insured lenders.
A lender is not, for purposes of the statute, categorically a bank.
In a conviction for conspiracy, absent a special verdict indication of reliance on a particular theory, reversal of an overt act under one theory still allows the conviction to stand, given the other possible overt acts.
No abuse of discretion in denial of new trial for alleged perjury, given deft's successful cross of witness.
United States v. Bouchard
Second Circuit: United States v. Garavito-Garcia
International Law, Crim, Conspiracy, Double Jeopardy
Treaty language requiring release within thirty days if not extradited did not create a private right for the deft - the right belongs to the state party. Comity requires that US courts recognize the decision by the state party declining to uphold the claim.
Sufficient evidence, given taped conversations.
Court's supplemental "mere presence" instruction was a correct statement of the law of conspiracy.
Indictment not duplicitous, as one count requires providing assistance to a group that commits a terrorist act, and another requires providing assistance to a group listed as a terrorist organization.
United States v. Garavito-Garcia
Ninth Circuit: USA v. Steven Grovo
Crim, Conspiracy
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Given the general mens rea of conspiracy, asynchronous contact on computer bulletin board suffices for actions "in concert" as required by the statute.
Active participation on a bulletin board suffices to prove furtherance of the board's common goal.
Communication with a closed community can constitute advertisement.
Where victim was harmed by both image and subsequent viewing of image, restitution must be disaggregated.
USA v. Steven Grovo
Fifth Circuit: USA v. Roberth Rojas, et al
Crim
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Drug statute constitutional, extraterritorial application valid, extraterritorial application did not violate due process.
Venue was proper in the first judicial district that the defts entered. (Not Cuba.)
Insufficient connection between defts and US at time of foreign wiretap to invoke Fourth Amendment.
Many other challenges, including conspiracy exit instruction, variance from indictment.
http://www.ca5.uscourts.gov/opinions/pub/13/13-40998-CR0.pdf
Subscribe to:
Posts (Atom)