Fifth Amendment

The Federal Docket

United States v. Starks (10th Cir. May 2022)

The Tenth Circuit reversed a defendant’s conviction where the prosecutor told the jury in closing arguments that the defendant’s right to be presumed innocent was gone after the close of evidence.

Flores-Rivera v. United States (1st Cir. October 2021)

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.”

Wilber v. Hepp (7th Cir. October 2021)

The Seventh Circuit affirmed the district court’s order vacating the defendant’s conviction after the defendant argued that his due process rights were violated when he was visibly shackled and restrained in a wheelchair with a stun bracelet on his arm during his state trial. The Court held that, even if the restraints were necessary, there was no finding on the record that it was necessary for them to be visible, especially since the defendant’s alleged misconduct mostly took place outside the courtroom and involved “disrespectful” words and gestures outside the presence of the jury. The error was not harmless.

United States v. Brandon Royce Phillips (11th Cir. July 2021)

The Eleventh Circuit affirmed a defendant’s conviction for enticing a minor to produce pornography, holding that the district court did not constructively amend the indictment when it instructed the jury that the government did not have to prove the defendant had knowledge of the victim’s age, as the language in the indictment alleging that the defendant acted “knowingly and intentionally” only applied to the “acts barred in the statute.” Moreover, the Court emphasized that a district court is free to ignore language in the indictment that alleges a “higher mens rea” than the statute requires as “mere surplusage. The Court vacated the defendant’s conviction for possessing child pornography, however, since he had also been convicted of receiving child pornography based on the same conduct, thus violating the Double Jeopardy Clause.

United States v. Lance Cannon & Vincent Holton (11th Cir. February 2021)

The Eleventh Circuit affirmed a pair of Hobbs Act robbery convictions, holding that 1) erroneous jury instructions regarding two predicate offenses under 924(c) were harmless where the offenses were inextricably entwined and one was properly instructed as a predicate offense; 2) defendant’s could not show entrapment or outrageous government conduct when the government set up a fake safe house and had an informant suggest to the defendant that they should rob the safe house; and 3) the defendants were not entitled to discovery for selective prosecution based on a showing that a racial group was disproportionately prosecuted unless they could show evidence of prosecution of similarly situated members of another racial group.

SDNY Judge Refers Prosecutors for Internal Investigation for Brady Violations

A case involving egregious prosecutor misconduct finally ended with a written opinion by the trial judge referring the prosecutors for investigation by the DOJ’s Office of Professional Responsibility. The Government had failed to disclose an exculpatory document until the middle of trial, where it produced a document dump and did not inform the defense of the new evidence, and emails between prosecutors showed they planned to “bury it” and lied to the court.

United States v. Julian Mora-Alcaraz (9th Cir. January 2021)

The Ninth Circuit affirmed a district court’s order suppressing a defendant’s statements under Miranda. The officers had interrogated the defendant without advising him of his Miranda rights after they approached him in marked cars and separated him from his seven-year-old son. However, the Court remanded for the district court to determine if the defendant’s subsequent consent to search his vehicle was voluntary.

Due Process Protections Act Puts Prosecutors On Notice Regarding Disclosure Obligations under Brady v. Maryland

Recent legislation called the Due Process Protections Act amended Rule 5 of the Federal Rules of Criminal Procedure. The Rule now requires district courts to issue orders at the initial appearance in every criminal case that reminds prosecutors of their obligations under Brady, lists potential consequences for violations, and sets deadlines for compliance.

United States v. Carlos Saul Becerra (5th Cir. October 2020)

The Fifth Circuit vacated special conditions of a defendant’s supervised release and remanded for resentencing holding that an absolute ban on computer use or internet access for ten years after serving a 12.5-year sentence was plain error. The Court held that the condition was overbroad because it was not narrowly tailored by scope or duration and would preclude defendant from participating meaningfully in modern society for long periods of time due to the ubiquitous nature and importance of the Internet.

United States v. Jose Reyes-Correa (1st Cir. August 2020)

The First Circuit reversed the denial of a defendant’s motion to dismiss federal drug conspiracy offenses under the Double Jeopardy Clause of the U.S. Constitution, holding that the Puerto Rico government and U.S. federal government are not separate sovereigns for Double Jeopardy purposes, so the defendant’s federal charges for drug conspiracy were barred by his prior conviction under Puerto Rican law for the same offense conduct.

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