Tag Archives: evidence

A Rare Sentencing Reversal on Evidentiary Failing – Update for November 18, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WHEN ‘SOME’ CAN BE ENOUGH

Antwain Moore was sentenced to 120 months for multiple drug offenses. One factual foundation for the sentence was the district court’s finding that the 56 grams of methamphetamine found in Antoine’s house were 100% pure. At sentencing, Antwain submitted an affidavit from a chemist that slammed the DEA’s lab technique for measuring purity as pure bunk.

madscientist221118The district court was unimpressed. When the DEA argued that the defendant’s expert affidavit was “not conclusive that the government’s procedures were improper or led to a bad result” and that “the DEA’s testing procedures are well accepted in the scientific community.” After all, the government said, Antwain could have retested the methamphetamine himself, but he did not.

On appeal, Antoine argued that a chemist’s affidavit he submitted met the “some evidence” standard sufficient to call into doubt the government’s purity claim, especially where the government did not bother to rebut his expert’s claim with evidence of its own.

Antwain’s chemist said in his affidavit that the DEA’s purity test method, comparing the meth sample to a reference graph could not yield a reliable result. Instead, the chemist said, the meth had to be tested against an actual meth sample of known purity. If Antoine’s argument was right, his guideline sentencing range would fall from 130-162 months in prison to 77-96 months.

He got slammed with 120 months.

Last week, the 7th Circuit reversed. “If Antwain had done nothing more by way of objection,” the Circuit said, “he would have offered what we have repeatedly described as only a ‘bare denial’ of the presentence report information, which ordinarily is not enough to shift the burden of production or to require a hearing.”

destroyevidence200615But Antwain did offer more than a bare denial. “He offered the opinion of an independent expert about the reliability of the DEA’s test results. Dr. Beauchamp explained that the DEA’s results were potentially inexact and inconsistent, pointing out in particular that the DEA’s report did not enable him to determine whether the purity level of drugs was consistent throughout the 55.6 grams.” To rebut this, the DEA offered only an evidence-free argument.

Noting that Antwain “has a due-process right to be sentenced based on reliable information,” the 7th ruled that the district court was wrong to hold that “there was no indication here or no evidence before the Court that the DEA protocols are not reliable.” In fact, the only evidence in the record was that those protocols were unreliable.

“The government submitted DEA test results that were not supported by any affidavit,” the Circuit wrote. “When the reliability was questioned in Dr. Beauchamp’s affidavit, the government chose to rest on an assumption that the district court adopted: that the DEA has reliable and generally accepted methods of testing drug purity. We assume that’s probably true as a general matter, but in a particular case, a defendant whose liberty is at stake is entitled to hold the government to its burden of proof by a preponderance of reliable evidence. An unsupported assumption does not tell us anything about whether test results in a particular case can reasonably be relied upon.”

Hearsayevidence210809The 7th held that “when the government relies on hearsay — such as the laboratory results here — and a defendant raises a plausible objection about whether its contents are indeed reliable, the government can reasonably be required to provide more of a foundation.”

Antwain’s case was remanded for resentencing.

United States v. Moore, Case No. 21-2485, 2022 U.S. App. LEXIS 30831 (7th Cir., Nov. 7, 2022)

– Thomas L. Root

Not Every Inconsistency Is Perjury – Update for December 4, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LIAR, LIAR, PANTS ON FIRE

liar151213Defendants filing 2255 motions often like to complain that the government allowed perjured testimony, which of course violates due process under the Supreme Court case, Napue v. Illinois. But Napue issues can be hard to win.

Last week, the 4th Circuit reminded defendants of just how hard. On direct appeal, Don Bush argued that a government witness had lied on the stand, and the government knew it.

Napue held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” And the same result holds when the government, although not soliciting false evidence, allows it to go uncorrected when it appears.” A meritorious Napue claim requires “a showing of the falsity and materiality of testimony.”

Here, the Circuit said, Don’s Napue claim failed. Witness McDunce perjured himself on direct examination that he first engaged in drug transactions with Don in 2013. On cross-examination, he asserted the transactions began in 2011. On redirect examination, however, Don’s lawyer clarified any confusion that could have arisen regarding the timeframe of McDunce’s drug dealings with Don.

Even if McDunce’s testimony contained inconsistencies, the Circuit said, they would not support a Napue claim. Mere inconsistencies in testimony by government witnesses do not establish the government’s knowing use of false testimony.

United States v. Bush, 2019 U.S. App. LEXIS 35555 (4th Cir. Nov. 27, 2019)

– Thomas L. Root

Well, Then, Would You Believe…? – Update for July 3, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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IF AT FIRST YOU DON’T SUCCEED…

At their first sentencing, the Vera brothers watched as the Government established the drug amounts implicated in their case for sentencing purposes through an FBI agent who “interpreted” the contents of wiretapped phone conversations to conjure up a drug weight. Drug weight, of course, drives the base offense levels of the Sentencing Guidelines – a kilo of meth will buy you a much higher sentencing range that a blunt of Mary Jane in your back pocket.

code180703The district court accepted the agent’s white-bread explanations of the purported code being used in the phone conversations, and hammered Armando with 360 months and his brother with 262.

After the 9th Circuit threw that out, the brothers were resentenced. This time, the Government – fearful of the FBI “translator” gambit – relied instead on the contents of co-conspirators’ plea agreements to establish drug quantities attributable to the Vera brothers.

Anyone who has been in a federal courthouse for any purpose other than to use the restrooms knows that the government dictates the contents of a plea agreement, and as long as the language in implicating someone else, a defendant will happily sign on. Paragraph 5 says a co-defendant kidnapped the Lindbergh baby? Why not? Despite the fact that using a plea agreement with Defendant A as sentencing evidence for Defendant B is like the government quoting itself, the district court found the approach “more credible” than the PSR and Armando’s sentencing memorandum, because it was the “least dependent on interpretation of the recordings” as well as the government’s “single most significant data source.”

lindbergh180703Last week, the 9th Circuit reversed the Vera brothers’ second sentencing, too. The panel held that the district court relied too heavily upon co-conspirator plea agreements to determine drug quantities, mistaking holding that the plea agreement statements were reliable statements against interest under F.R.Ev. 804(b)(3). The panel said “a defendant signing a plea agreement may adopt facts that the government wants to hear in exchange for some benefit, usually a lesser sentence. In pointing their fingers at the Vera brothers, the co-conspirators were acknowledging neither their own guilt nor conduct that would necessarily enhance their own sentences. Rather, these statements merely helped the government’s prosecution of the Veras.” Due to a co-defendant’s strong motivation to implicate the defendant and to exonerate himself, any statements “about what the defendant said or did are less credible than ordinary hearsay evidence.”

Hearsay is admissible at sentencing, so long as it is accompanied by “some minimal indicia of reliability.” But here, the district court’s primary rationale for relying upon the plea agreements was Evidence Rule 804(b)(3). The Circuit ruled that a district court may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.

United States v. Vera, Case No. 16-50634 (9th Cir. June 25, 2018)

– Thomas L. Root

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