VIII. Defenses
Miscellaneous Defenses
Supreme Court Decisions
L. Miscellaneous Defenses• Fed. R. Crim. P. 33 - New Trial Motion
Eberhart v. U.S., 04-9949 (10/31/05)
> Defendant was convicted of a drug conspiracy and filed a motion for new trial pursuant to Rule 33 within the seven day time limit. In the motion, defendant raised only one ground to support his request for a new trial. Defendant subsequently filed a memorandum, outside the seven day time limit, raising two additional grounds for a new trial. The government opposed the new trial request on the merits, but did not raise the Rule 33 timeliness issue. The district court granted defendant’s motion and stated that the totality of all three grounds cited by defendant required a new trial. The government appealed, and the Seventh Circuit reversed. The court held that the Rule 33 timeliness issue is jurisdictional and thus, the government was permitted to raise it for the first time on appeal. Defendant appealed to the Supreme Court and certiorari was granted.
* Holding: The Court held that Rule 33 is not a rule governing the district court’s subject-matter jurisdiction, but instead is an “inflexible claim-processing rule.” Because the rule is not jurisdictional, it may be waived if not raised before the district court. Accordingly, the government waived the timeliness of defendant’s new trial motion by failing to raise it in the district court, and the Court reversed the Seventh Circuit’s decision, thus affirming the district court’s ruling granting a new trial.
• Vienna Convention-Consular Notification
Sanchez Llamas v. Oregon,04-10566 (6/28/06)
> Defendants in two different cases claimed that authorities violated their rights by failing to notify them that they had a right to have the consular from their home countries notified of their arrest in the United States. Defendant Sanchez-Llamas claimed that statements he made to authorities after his arrest should be suppressed because they failed to first notify him of his right to consular notification. Defendant Bustillo claimed, for the first time in a post-conviction petition after his murder trial, that his conviction must be reversed because he was not informed of his right to consular notification. The state court found that the claim was procedurally defaulted because it was not raised until the post-conviction petition. Both defendants lost their state court appeals, and the Supreme Court granted certiorari in both cases.
* Holding: The Court held that the consular notification requirement of the Vienna Convention does not require suppression, in a state court proceeding, of statements made by a defendant to authorities where the authorities did not first advise the defendant of his right to the notification. Additionally, the Court held that state procedural default rules apply to claims under the Vienna Convention, and therefore Bustillo’s claim had been defaulted. Accordingly, both defendants’ convictions were affirmed.
• 18 USC § 3501-Presentment to Magistrate
Corley v. U.S., 07-10441 (4/6/09)
> Defendant was being investigated for bank robbery and the FBI learned that defendant was wanted on unrelated state warrants. The agents arrested defendant on the state warrants and began questioning him about the bank robbery. Approximately 9.5 hours after arrest, defendant began his confession, which was continued the following day. Later in the day, defendant was finally presented to a magistrate, 29.5 hours after his arrest. In his subsequent prosecution for bank robbery, defendant moved to suppress his confession based on the presentment requirement of § 3501(c). The district court denied the motion, and the Third Circuit affirmed. Defendant appealed to the Supreme Court.
* Holding: The Court held that the enactment of § 3501 did not completely abrogate the Court’s prior holdings in McNabb v. U.S. and Mallory v. U.S.. Instead, the Court ruled that McNabb-Mallory presentment cases were modified by § 3501 as follows: The district court must determine whether a confession occurred within six hours of arrest, “unless a longer delay was reasonable considering the means of transportation and the distance to be traveled to the nearest available magistrate.” If the confession occurred within that time period, and it is voluntary, it is admissible. If the confession occurred before presentment to a magistrate and beyond the six hour time period, the court must decide whether the delay was unreasonable or unnecessary under McNabb-Mallory, and if it was, the confession must be suppressed. Accordingly, the case was remanded to the district court for reconsideration consistent with the Court’s ruling.
Sixth Circuit
• Subject Matter JurisdictionU.S. v. Madden, 04-5150 (4/4/05)
> Defendant was convicted under the federal vote buying statute (42 U.S.C. § 1973i) based upon a plea agreement in which defendant waived his right to “appeal the guilty plea and conviction.” Nonetheless, defendant appealed the conviction upon the grounds that the district court did not have jurisdiction over the case because the statute did not prohibit the buying of non-federal votes and because, even if it did, the statute was unconstitutional.
* Holding: The court held that the defendant’s challenge was not “jurisdictional,”as he claimed, and therefore the appeal was governed by the appeal waiver. The court held that the district courts’ jurisdiction is premised upon 18 U.S.C. § 3231,which gives such courts power to hear cases involving offenses against the U.S. A challenge that a statute does not cover certain conduct, or that a statute is unconstitutional because it is beyond Congress’ authority to regulate, does not affect the district court’s jurisdiction to hear the case. Thus, even if defendant was right that the statute was infirm, the district court was not deprived of jurisdiction and the appeal waiver was valid.
• Rule 29 Motions for Acquittal
U.S. v. Wesley, 04-1626 (5/18/05)
> Defendant was charged with attempted bank robbery and at the close of the case made a Rule 29 motion, referencing the elements of attempted bank robbery. Defendant was convicted and appealed. Defendant raised on appeal that “actual intimidation” is a required element of bank robbery, although Defendant did not argue during the Rule 29 that it was an element of the offense.
* Holding: When a defendant makes a Rule 29 motion on specific grounds, all grounds not raised in the motion are waived on appeal when challenging the sufficiency of the evidence. In contrast, a Rule 29 motion that is a “general challenge to the sufficiency of the evidence” allows a defendant to raise any sufficiency of the evidence challenge on appeal. In this case, the court held that because defendant had specifically referenced the elements of attempted bank robbery in the Rule 29 motion, the motion was specific, and not general, in nature. Thus, since the “actual intimidation” issue was not argued in the Rule 29, it was waived on appeal.
• 28 USC § 455 - District Judge Recusal
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant was charged with conspiracy and money laundering in relation to an insurance fraud scheme. The district judge hearing defendant’s criminal case also presided over a civil case against defendant to recover the fraudulently obtained proceeds. Defendant moved for the district judge’s recusal and the court declined. Defendant appealed.
* Holding: Pursuant to § 455, a judge is required to recuse herself if she has prejudice or bias against a defendant which is of a “personal or extrajudicial” nature. Because the alleged bias in the case came only from the judge’s judicial involvement with defendant’s civil case, the court found no grounds for recusal.
•Diminished Capacity-Voluntary Intoxication
U.S. v. Veach, 05-6268 (8/1/06)
> Defendant was charged with one count of resisting a federal law enforcement officer (18 USC § 111(a)) and two counts of threatening to assault and murder a federal law enforcement officer (18 USC § 115(a)). The government filed a motion in limine to prevent defendant from introducing the defense of diminished capacity based upon voluntary intoxication and the district court granted the motion. Defendant was convicted of all counts and appealed.
* Holding: Diminished capacity as a result of voluntary intoxication is a defense only to a specific intent crime. A specific intent crime requires the defendant to do more than knowingly act in violation of law, while a general intent crime requires only that a defendant intend to do the act that the law prescribes. The court first held that the § 111 violation was a general intent crime because the statute required only that the violator resist a federal officer; no intent need be proven. Second, the court found that the § 115 violation was a specific intent crime because the statute required proof that defendant intended to impede or retaliate against the federal official. Thus, the court ruled that the diminished capacity defense was not available for the § 111 charge, but should have been permitted for the § 115 violation. Accordingly, the case was reversed and remanded for retrial on the § 115 charges.
• 8 USC § 1357 - Immigration Warrants
U.S. v. Abdi, 05-4199 (9/22/06)
> ICE and the FBI were investigating defendant based upon the threat of terrorism. As a result of the investigation, ICE decided to take Abdi into custody because he was a threat to national security and an escape risk. Although ICE began the process of obtaining an administrative immigration warrant, it ultimately decided to arrest defendant before such a warrant was obtained, as required by 8 USC § 1357(a). Defendant was subsequently charged with providing material support to terrorists and moved to suppress all statements he made and evidence seized as a result of his arrest. The district court granted the motion and the government filed an interlocutory appeal.
* Holding: The exclusionary rule only applies to a violation of a statutory requirement in two situations: (1) where the evidence in question arises directly out of the statutory violation and the statute itself expressly mandates suppression; or (2) the violation implicates a Fourth or Fifth Amendment interest. The court held that the failure by the government to obtain an administrative warrant may have violated § 1357(a), but the statute did not expressly require suppression of evidence. The court further held that the Fourth Amendment was not violated by defendant’s arrest. (See supra, IV. Fourth Amendment). Accordingly, the district court ruling was reversed.
• Competency - 18 USC § 4241
U.S. v. Jones, 06-5328 (7/23/07)
> Defendant was charged with being a felon in possession of a firearm and entered an agreement to plea guilty. Defendant was practically deaf since age two, and he utilized realtime reporting during the plea hearing. Nonetheless, the district court concluded that defendant could not understand the plea hearing because he expressed an inability to comprehend the question, “Are there any other understandings that you have with the United States regarding your case that are not set out in that plea agreement?” The government requested that the district court hold a formal competency hearing, but the district court declined to hold a hearing, found defendant incompetent, and permanently removed the case from its trial calender. The government appealed.
* Holding: The competency statute, § 4241(a), requires that, where a district court finds reasonable cause to believe that a defendant may be incompetent, the court “shall” hold a competency hearing upon the request of a party. In the case, the court held that § 4241(a) is a mandatory requirement. Accordingly, the court found an abuse of discretion in the district court’s failure to hold a formal competency hearing when requested by the government. Thus, the case was remanded.
• Extradition Treaty
U.S. v. Robinson, 06-5787 (9/26/07)
> Defendant was convicted for participating in a drug conspiracy and for a firearms offense. Prior to sentencing, defendant fled to Brazil. Defendant was sentenced in absentia and subsequently extradited from Brazil to serve his sentence. Defendant’s sentence was subsequently vacated on appeal and at resentencing, defendant challenged application of an enhancement for obstruction of justice. The enhancement was based upon defendant’s flight to Brazil. Defendant argued that the terms of his extradition from Brazil included only the drug conviction, and that applying a sentencing enhancement his flight amounted to punishment for an escape, which was outside the terms of the extradition. The district court rejected defendant’s argument, and he appealed.
* Holding: The court held that imposition of an obstruction of justice enhancement did not constitute “punishment” for another offense, which would contravene the extradition treaty with Brazil. Accordingly, the court affirmed the imposition of the enhancement.
• 18 USC § 3142 - Bond Restrictions
U.S. v. Vasilakos, 05-3166 (11/21/07)
> Defendant was charged with conspiracy and mail fraud. While the case was pending, defendant was ordered by the district court to have no contact with potential government witnesses, although defendant’s counsel was permitted to have contact with them. Upon his conviction, defendant argued on appeal that the bond condition deprived him of the right to prepare his defense.
* Holding: The Bail Reform Act permits a district court to limit a defendant’s contact with victims or witnesses if the condition is the “least restrictive” condition that will ensure the defendant’s appearance and the safety of others. In determining whether bond conditions are appropriate, the court must consider (1) the nature and circumstances of the offense, (2) the weight of the evidence, (3) the defendant’s history and characteristics, and (4) the nature and seriousness of the danger to another. In the case, the court held that the district court ruling was proper because it was not unduly restrictive and defendant showed no harm resulting from the condition.
• Fed. R. Crim. P. 10 - Right to Arraignment
U.S. v. Lalonde, 06-4536 (12/12/07)
> Defendant was indicted for wire fraud and tax evasion. At the arraignment, the magistrate judge failed to read or summarize the indictment, or to obtain defendant’s waiver of the reading. Defendant did not object to the procedure and he ultimately pled guilty. At defendant’s guilty plea hearing, he told the district judge that he received the indictment, that he understood it, and that he and his attorney discussed possible defenses to it. Defendant never objected in the district court to the irregularity at the arraignment, but instead raised the issue for the first time on appeal.
* Holding: First, the court held that defendant waived the issue on appeal because it was not raised in the district court. (See infra, XII. Appeal). Nonetheless, the court proceeded to the merits of the issue in order to “clarify the law in this area.” The court ruled that the magistrate clearly violated Fed. R. Crim. P. 10(a) by failing to read or explain the indictment to defendant at the arraignment. Because defendant failed to object in the district court , however, the court applied plain error review and determined that the district court error did not affect defendant’s substantial rights. Defendant was represented by counsel at the arraignment and the attorney had a copy of the indictment. Further, defendant pled guilty and explained at the guilty plea hearing that he understood the indictment and discussed it with his attorney. Accordingly, defendant could not show any prejudice from the magistrate’s failure to comply with Rule 10. Thus, defendant’s conviction was affirmed.
• Competency - 18 USC § 4241
U.S. v. Miller, 06-4583 (7/1/08)
> Defendant was charged with wire fraud, money laundering, and witness tampering. During the proceedings, the following occurred: (1) defendant’s counsel expressed difficulties with the attorney-client relationship; (2) the district court commented on defendant’s mental health; and (3) a probation officer suggested that a mental health evaluation may be appropriate based on defendant’s feelings of paranoia. Upon his conviction and sentence, defendant appealed and argued that the district court erred in failing to order, sua sponte, a competency hearing.
* Holding: Pursuant to § 4241, a district court is required to order, sua sponte, a competency hearing, where reasonable cause exists to believe that the defendant is mentally incompetent to stand trial. The court held that the bar for incompetency is high. Although the court found some information in the record which indicated that defendant may have mental health issues, defendant demonstrated that he had the ability to assist counsel and that he understood the nature of the proceedings. Thus, the court ruled that no competency hearing was required and defendant’s conviction was affirmed.
• Fed. R. Crim. P. 17(b) - Writ for Witness
U.S. v. Guthrie, 07-6215 (3/2/09)
> Defendant was charged with car-jacking and firearm offenses for going to an associate’s girlfriend’s apartment and car-jacking her vehicle at gun point. At trial, defendant requested a writ of habeas corpus ad testificandum in order to bring an associate from jail to testify for the defense. Defendant argued that the witness was necessary because he would establish that defendant went to the girlfriend’s apartment with the intent to settle a drug debt, and not to cause her serious bodily injury. The district court denied the writ, defendant was convicted, and he appealed.
* Holding: In order to obtain writ for witness testimony, Fed. R. Crim. P. 17(b) requires a defendant to show the “necessity of the witness’ presence for an adequate defense.” The court held that the witness’ testimony was irrelevant to defendant’s case. Defendant’s intent when he went to the girlfriend’s apartment was immaterial; instead, the relevant question is defendant’s intent at the time of the car-jacking. Accordingly, the district court ruling was affirmed.
• Rule 33 - Motion for New Trial
U.S. v. Carson, 05-1812 (3/30/09)
> Defendant was a police officer who was convicted of perjury and obstruction for false statements he made to a federal grand jury regarding an incident where fellow officers severely beat a motorist. After defendant’s conviction, he discovered a restitution request sent by the victim’s attorney to the probation department before trial. The statement contradicted the victim’s testimony at trial that he had not yet tried to quantify his damages. Defendant moved for a new trial and the district court denied the motion. Defendant appealed.
* Holding: In order to prevail on a new trial motion based on newly discovered evidence, the defendant must show the following: (1) the new evidence was discovered after the trial; (2) it could not have been discovered with due diligence; (3) it is material and not merely cumulative or impeaching; and (4) it would likely produce an acquittal. The court found that the new evidence was merely impeaching, and would have had no effect on the jury’s determination as to whether defendant lied to the grand jury. Accordingly, defendant’s conviction was affirmed.
• Fed. R. Crim. P. 33 - New Trial Motion
U.S. v. Kuehne, 06-3668 (10/28/08)
> Defendant was convicted of numerous firearms offenses, and five months after his trial he filed a pro se motion for new trial. Defendant alleged that his failure to file within seven days of the verdict was due to his trial counsel’s ineffectiveness. The district court appointed new counsel and overruled defendant’s motion. Defendant appealed.
* Holding: Rule 33 requires that a motion for new trial be filed within seven days of the verdict. The court held that the only exception to this seven-day rule is on the basis of newly discovered evidence. Ineffective assistance of counsel does not excuse the time limitation of the rule. Accordingly, the district court ruling was affirmed.
• Entrapment
U.S. v. Schaffer, 09-3053 (11/12/09)
> Defendant was charged with conspiracy to commit computer fraud and moved to dismiss the indictment based on entrapment. The district court denied the motion and held that the issue was one for the jury at trial. Defendant subsequently entered a guilty plea, but argued on appeal that the district court erred in denying the motion.
* Holding: The court held that it is seldom appropriate to grant a pretrial motion to dismiss based on entrapment. In order to warrant such a dismissal, the court would have to find that defendant was entrapped as a matter of law and the “undisputed evidence must demonstrate a patently clear absence of predisposition.” The court ruled that defendant had not made such a showing and accordingly the district court’s ruling was affirmed.
• Rule 16 - Discovery Violations
U.S. v. Hardy, 08-5421 (11/20/09)
> Defendant was charged with bank fraud and tax evasion for stealing money from her employer. One week prior to trial, defendant provided her counsel with check stubs to support her defense that she was taking money from the company to repay a loan she made to the company. Defendant’s counsel issued a subpoena duces tecum to the company for originals of the checks, and the company responded on the day of trial that the records were either lost or destroyed. Thus, defendant’s counsel sought to introduce the check stubs, which had not been turned over to the government in advance. The district court excluded the check stubs under Fed. R. Crim. P. 16, defendant was convicted, and she appealed.
* Holding: Pursuant to Rule 16(b), a defendant is required to provide reciprocal discovery when requested by the government. Further, the rule requires a party who discovers additional evidence prior to trial to promptly disclose its existence to the other party or the court. In the case, the court held that exclusion of the check stubs was the proper remedy. Defendant and his counsel were aware of the check stubs at least a week before trial, but failed to disclose their existence until the trial. Defendant provided no logical explanation for the failure to disclose the check stubs when provided to counsel the week before trial. Accordingly, the district court’s ruling was affirmed.
• Rule 43(a)(2) - Defendant’s Presence
U.S. v. Thornton, 08-3349 (2/12/10)
> Defendant was charged with drug and firearm offenses and he was not permitted to participate in the charge conference with the district court. Instead, defendant’s counsel and the prosecutor worked out the jury instructions with the court. Defendant was convicted and he appealed.
* Holding: Fed. R. Crim. P. 43(a)(2) requires that a defendant be present at “every trial stage,” however subsection (b)(3) excludes a “conference or hearing on a question of law.” The court noted that all other circuits to address the issue have held that Rule 43 does not require a defendant’s presence at a charge conference, but that it is sufficient is defendant’s counsel is present. The court determined that it did not have to decide the issue because defendant had not alleged that the conference resulted in any erroneous jury instructions, nor was there any indication that counsel was not capable of fully representing defendant at the conference. Accordingly, defendant’s conviction was affirmed.