First Circuit: US v. De Jesus-Gomez

 

In a civil forfeiture proceeding in Admiralty, discovery sanctions are slightly more severe than in the civil analogue.  The Court must weigh severity, repetition, and deliberateness of the violation must be considered.  No prejudice need be shown.  The court did not abuse its discretion in striking the late response and issuing default judgment against a vessel whose claimants asserted a Fifth Amendment exception to civil interrogatories, having previously asserted the exception in a motion to stay that was denied without prejudice.  Although one of the claimants was being held in solitary confinement during the discovery period, the other claimant was not so encumbered.

US v. De Jesus-Gomez

Eleventh Circuit: Denzil Earl McKathan v. USA

 

Former prisoner on federal supervised release might have reasonably believed that he was compelled by the terms of the supervised release to unlock his phone and answer the questions truthfully, so while the information can be used to revoke the supervised release, the 5A right to silence was invoked by operation of law, meaning that the information cannot be used in a subsequent prosecution.

Remand for consideration of inevitable discovery exception. 

Dissent:

Deft's invocation wasn't automatic, since his subjective belief wasn't reasonable in light of the prevailing law.

Denzil Earl McKathan v. USA

Seventh Circuit: USA v. Latasha Gamble

 

No clear error in sentencing court's determination that, by a preponderance of the facts, a functioning gun was used in the commission of the robbery.

5A claim properly preserved despite not being raised below, since the theory was that the sentencing factor found by a preponderance took into consideration deft's lack of testimony about the possession of the firearm.

Deft's misrepresentations waived 5A protections.

USA v.  Latasha Gamble

Ninth Circuit: USA v. Alexander Oriho

 

Court order to repatriate funds is sufficiently final for interlocutory review.

Order to a pretrial detainee to repatriate funds in the amount of the alleged fraud violates 5A privilege against self-incrimination, as the location of many of the funds haven't been established or suggested by the government, and the limited use immunity offered by the prosecuting jurisdiction would not protect against use of information as a link in the chain or against uses by other jurisdictions.

USA v. Alexander Oriho

Eighth Circuit: United States v. Calvin Bernhardt

Sufficient evidence where counterfeit bills were in a stack separate from the other currency and showed varying levels of verisimilitude.

Indictment counts not multiplicitous, as one refers to spoiliation.

Attempt to persuade co-conspirator to remain silent, where accompanied by consciousness of wrongdoing, is culapable, as it falls outside of Fifth Amendment and privilege protections.

A substantial step towards illicit travel must implicate travelling -- not the underlying criminal plan.

http://media.ca8.uscourts.gov/opndir/18/09/171325P.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