First Circuit

The First Circuit vacated a defendant’s conviction for attempted coercion and enticement of a minor. The Court held that the trial court erred in excluding certain expert testimony from a clinical psychologist. While the trial court had allowed the witness to testify as an expert in the field of internet sexual behaviors, it erred in prohibiting the witness from opining on the defendant’s internet chats and whether chats like his met the pattern shown by child predators who communicate with minors online.

The First Circuit vacated the sentence of a former police officer convicted of RICO conspiracy. The Court held that the district court erred in considering the PSR’s mere mentioning of the defendant’s prior administrative complaints, without more to substantiate them, as a basis for an upwards variance from the Guidelines.

The First Circuit reversed the convictions of two drug trafficking defendants based on prosecutorial misconduct. Among other things, the prosecutor had improperly appealed to the jury’s emotions regarding drug addiction in the community, improperly invited the jury to find the defendants guilty “by association,” and improperly vouched for the credibility of the prosecution and law enforcement. The Court concluded that the fourth prong of plain error review was met and that the district court erred in holding the strength of the evidence negated the error’s effect on the fairness, integrity, or reputation of judicial proceedings.

The First Circuit vacated a defendant’s 46-month sentence for various firearm offenses, holding that the district court erred in finding that the defendant was an “unlawful drug user” at the time of his offense. The enhancement was based on the defendant’s statement to probation, during the drafting of his PSR, that he smoked marijuana daily in the years leading up to his arrest. The Court held that this statement failed to establish the temporal nexus for the defendant’s drug use and his possession of a firearm, especially since the defendant had also told probation that he sometimes went “weeks” without smoking marijuana, and thus the district court clearly erred in relying on it for the enhancement.

The First Circuit held that the district court did not err in enforcing a DEA subpoena to New Hampshire’s Prescription Drug Monitoring Program (PDMP), holding that 1) a subpoena does not amount to a lawsuit against a state and thus does not violate its sovereignty, and 2) people do not have a reasonable expectation of privacy in their prescription drug records given the closely regulated industry doctrine.

The First Circuit held, as a matter of first impression, that a district court considering a motion for compassionate release is not bound by U.S.S.G. 1B1.13. In doing so, the Court joined every other circuit to consider the issue, except the 11th Circuit, in recognizing that district courts have broad discretion to determine whether an inmate presents “extraordinary and compelling reasons” warranting relief. Here, the defendant was serving a mandatory life sentence, and the Court added that district courts are free to consider “non-retroactive changes in sentencing law on an individual basis, grounded in a defendant’s particular circumstances…” Even among the circuits that agree 1B1.13 is not binding, there is a split regarding whether non-retroactive changes in sentencing laws may be considered towards an inmate’s release.

The First Circuit reversed a district court’s order denying defendant’s motion to vacate sentence and conviction under 28 USC 2255. The defendant’s appellate attorney had been ineffective for failure to raise a Brady claim, raised by all of her co-defendants on appeal, based on the government’s failure to disclose material that would have undermined the government witnesses’ credibility. The First Circuit held that “any reasonable attorney would have known of the availability of the Brady claim since the co-defendants all raised it and since trial counsel had preserved the issue by raising it in his motion for new trial.”

In an appeal from a grant of qualified immunity in a 1983 case, the First Circuit held that police officers violated clearly established Fourth Amendment law when they repeatedly entered the curtilage of a man’s home and knocked on his door and windows despite clear indications that he did not want to come to the door. The Court held this was clearly a violation of the man’s Fourth Amendment rights under Florida v. Jardines.

The First Circuit vacated a defendant’s conviction for enticing a minor after the defendant arranged with an undercover agent to have sex with a minor. The Court held that the defendant was entitled to an instruction on entrapment where there was evidence of improper inducement based on the agent offering to “bundle” legal sex with an adult with illegal sex with a minor, and where the agent downplayed the potential harm. There was also evidence that the defendant was not predisposed, given the lack of evidence of similar transactions and the defendant’s initial hesitation.

The First Circuit vacated a defendant’s sentence for maintaining a drug involved premises. The Court held that the district court erred in applying the higher offense level under USSG 2D1.8(a) because there was insufficient evidence that the defendant had participated in the underlying drug offense beyond providing her apartment to her boyfriend as a place to sell and store drugs. The fact that she knew about his drug activities and accompanied him on some of his trips to resupply, standing alone, were not enough to show she participated.