U.S. v. Hite, No. 13-3066 (D.C. Cir. Oct. 21, 2014).
The Federal Defender for DC filed an amicus brief.
Conviction: 18 U.S.C. 2422(b): attempting to persuade a minor to engage in unlawful sexual activity.
Sentence: 22 years + $500k fine.
Facts: D used Internet and phone to communicate with undercover detective who claimed to be adult male with access to twelve-year-old girl and three-year-old boy for sexual activity. No actual kids involved at all.
Issues:
* Does 2422(b) require direct communication with the minor(s)? (Issue of first impression for circuit.)
* Were jury instructions erroneous?
* Did dist ct improperly exclude defense expert?
* Did dist ct improperly prevent defense impeachment of detective?
Conclusions:
* Seven circuits have considered issue of scope of 2422(b). DC Cir joins these circuits and concludes that communications with adult intermediary to persuade minor is enough as long as D's interaction with intermediary is aimed at overcoming minor's will in favor of engaging in sexual conduct.
* There is no general federal attempt statute. Statute here expressly proscribes attempts.
* The "substantial step" required to prove an attempt must strongly corroborate D's intent to engage in conduct to persuade minor by way of the intermediary.
* Ambiguity insufficient to trigger rule of lenity.
* Here, the D argued it was all fantasy: Internet hyperbole. Unfortunately, he did not raise the issue brought in the Federal Defender's amicus brief: activities were mere preparation and insufficient to constitute attempt.
* Conviction vacated and case remanded for new trial b/c jury instructions too broad.
* D's expert (Johns Hopkins psychiatrist) should have been allowed to testify. He was going to address the difference b/t a desire to actually engage in sexual conduct with a minor and mere fantasy/role playing. He was also going to discuss diagnosis of D as not suffering from a psychiatric condition associated with a desire to have sexual contact with children. Finally, he was going to testify regarding relationship b/t CP (D found with CP) and sexual interest in children.
* D's Rule 16 notice not insufficient here. Rule 16 does not require D to explain the basis of the proposed opinions' admissibility or the legal basis for their introduction.
* D's defense was that this activity was all fantasy. D should have been allowed to present testimony to show he was not interested in actual sex with minors.
* Expert testimony on Internet fantasy and sexual fantasies involving minors could have helped jury.
* Dist ct's prevention of cross-examination impeaching detective was not an abuse of discretion (testimony from other cases).
* Case not extraordinary, so no reassignment to new judge on remand.
This case is not a Sixth Circuit case, but still very interesting, esp. given that the Federal Defender's Office contributed an amicus brief.
Showing posts with label Forensic Science. Show all posts
Showing posts with label Forensic Science. Show all posts
Monday, November 3, 2014
Wednesday, August 28, 2013
Gunshot Residue
United States v. Stafford, No. 12-3238 (6th Cir. June 11, 2013) (for publication). Panel of Judges Boggs, White, and McCalla (W.D. Tenn.).
Not a "new" case now, but worth noting.
Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403. D asked for Daubert hrg. Dist ct denied the motion.
On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First, Stafford states that '[gunshot-residue] testing will not determine whether an individual fired a gun, was present when a gun was fired by someone else, or was merely in an environment in which [gunshot residue] existed.' Stafford claims that because these three possible outcomes summarize the testimony of the Government's expert Robert Lewis—and because Lewis could not testify whether Stafford actually fired the weapon—Lewis 'could not reasonably make any conclusions as to the actual source of the six [gunshot-residue] particles found,' and therefore Lewis's testimony did not meet the standards of Daubert or Rule 702." Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him.
The defendant also argued that gunshot-residue evidence is imprecise. COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable.
The argument that the particles could have been transferred inadvertantly was likewise unavailing. COA found the evidence sufficiently reliable. Defense cross-examined the gov expert on the point. As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability. The arguments go to the weight of the evidence, not admissibility. Cross-examination allowed jury to consider the weight of the evidence.
Evidence not unfairly prejudicial under rule 403.
Opinion also addresses ACCA. Conviction for "aggravated riot" under Ohio law counts for ACCA purposes. And it touches on 3C1.2, reckless endangerment. 3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub.
Not a "new" case now, but worth noting.
Defendant (D) moved dist ct pre-trial to exclude gunshot-residue evidence, citing rules 702 and 403. D asked for Daubert hrg. Dist ct denied the motion.
On appeal, the defendant made "four arguments regarding the inadmissibility of the gunshot-residue evidence. First, Stafford states that '[gunshot-residue] testing will not determine whether an individual fired a gun, was present when a gun was fired by someone else, or was merely in an environment in which [gunshot residue] existed.' Stafford claims that because these three possible outcomes summarize the testimony of the Government's expert Robert Lewis—and because Lewis could not testify whether Stafford actually fired the weapon—Lewis 'could not reasonably make any conclusions as to the actual source of the six [gunshot-residue] particles found,' and therefore Lewis's testimony did not meet the standards of Daubert or Rule 702." Dist ct allowed defense expert to testify regarding the evidence, but the defense did not call him.
The defendant also argued that gunshot-residue evidence is imprecise. COA said five particles on D's hand meant the conclusion that the D had residue on his hand was reliable.
The argument that the particles could have been transferred inadvertantly was likewise unavailing. COA found the evidence sufficiently reliable. Defense cross-examined the gov expert on the point. As to whether the police used proper techniques to gather the evidence, COA found these arguments do not go to reliability. The arguments go to the weight of the evidence, not admissibility. Cross-examination allowed jury to consider the weight of the evidence.
Evidence not unfairly prejudicial under rule 403.
Opinion also addresses ACCA. Conviction for "aggravated riot" under Ohio law counts for ACCA purposes. And it touches on 3C1.2, reckless endangerment. 3C1.2 applied: defendant threw loaded gun against a building near a crowded street and nightclub.
Monday, December 12, 2011
Fingerprint Evidence and Plain-Error Review of Sentence
United States v. Watkins, No. 09-3688 (6th Cir. Dec. 12, 2011) (unpublished). Panel of Judges Gilman, Rogers, and Stranch.
Armed robbery of a credit union. Conviction affirmed, but sentence vacated.
Procedural Highlights:
* Orally pronounced sentence on one count exceed the statutory maximum sentence and then conflicted with the minute order and the written judgment.
* Before the end of the sentencing hearing, the defendant asked the district court to direct the clerk's office to file a notice of appeal for him. The notice, however, was never filed. The defendant filed a pro se notice months later. The district court then ordered the clerk's office to file a notice of appeal nunc pro tunc to the date of sentencing.
* The appellate court found that the district court lacked the authority to enter the nunc pro tunc order and dismissed the appeal for lack jurisdiction.
* The defendant filed a pro se 2255, which the gov supported, as the gov recognized that the defendant was not at fault for the untimeliness of the notice of appeal. Sentencing discrepancy not addressed.
* To remedy the notice-of-appeal issue, the district court vacated its judgment and reentered a judgment, which matched the earlier written judgment.
Conclusions of Court of Appeals:
* Usually, an oral pronouncement of judgment controls. Oral sentence, however, constituted technical error b/c it exceeded the statutory maximum sentence. Written judgment that would have corrected this error was issued two days after the Rule 35(a) deadline, however. Because the defendant did not raise the issue on appeal and because the COA vacated the sentence, the court did not decide whether or not relief based on the discrepancy was in order.
* Admission of fingerprint evidence was not an abuse of discretion. At CDAM and at local panel trainings, we've talked a little about forensic evidence. In this case, the Sixth Circuit discussed the National Research Council's Strengthening Forensic Science in the United States: A Path Forward of 2009.
* At the Daubert hearing, the gov fingerprint examiner testified that when the ACE-V method of identifying latent fingerprints is properly used by a competent examiner the error rate for identification is zero. The defendant challenged this assertion.
* The COA found two problems with the challenge. First, the National Research Council's report from 2009 was not before the district court in 2005. Second, error rate is only one factor to consider. Even if the gov examiner was wrong about it, that mistake would not negate the scientific validity of the ACE-V method given the other factors the district court had to consider, and which the defendant did not challenge on appeal.
* Plain-error standard applied to procedural sentencing claim. COA found that the sentencing "court's failure to explain [the defendant's] sentence constituted plain error." No reasoning given for the sentence. The sentencing court did not address the defendant's argument that the sentence was disproportionate to another bank robber's sentence.
* The COA distinguished United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), as in that case the court had offered "at least some" explanation for the sentence imposed. There was no explanation in the case at hand.
Armed robbery of a credit union. Conviction affirmed, but sentence vacated.
Procedural Highlights:
* Orally pronounced sentence on one count exceed the statutory maximum sentence and then conflicted with the minute order and the written judgment.
* Before the end of the sentencing hearing, the defendant asked the district court to direct the clerk's office to file a notice of appeal for him. The notice, however, was never filed. The defendant filed a pro se notice months later. The district court then ordered the clerk's office to file a notice of appeal nunc pro tunc to the date of sentencing.
* The appellate court found that the district court lacked the authority to enter the nunc pro tunc order and dismissed the appeal for lack jurisdiction.
* The defendant filed a pro se 2255, which the gov supported, as the gov recognized that the defendant was not at fault for the untimeliness of the notice of appeal. Sentencing discrepancy not addressed.
* To remedy the notice-of-appeal issue, the district court vacated its judgment and reentered a judgment, which matched the earlier written judgment.
Conclusions of Court of Appeals:
* Usually, an oral pronouncement of judgment controls. Oral sentence, however, constituted technical error b/c it exceeded the statutory maximum sentence. Written judgment that would have corrected this error was issued two days after the Rule 35(a) deadline, however. Because the defendant did not raise the issue on appeal and because the COA vacated the sentence, the court did not decide whether or not relief based on the discrepancy was in order.
* Admission of fingerprint evidence was not an abuse of discretion. At CDAM and at local panel trainings, we've talked a little about forensic evidence. In this case, the Sixth Circuit discussed the National Research Council's Strengthening Forensic Science in the United States: A Path Forward of 2009.
* At the Daubert hearing, the gov fingerprint examiner testified that when the ACE-V method of identifying latent fingerprints is properly used by a competent examiner the error rate for identification is zero. The defendant challenged this assertion.
* The COA found two problems with the challenge. First, the National Research Council's report from 2009 was not before the district court in 2005. Second, error rate is only one factor to consider. Even if the gov examiner was wrong about it, that mistake would not negate the scientific validity of the ACE-V method given the other factors the district court had to consider, and which the defendant did not challenge on appeal.
* Plain-error standard applied to procedural sentencing claim. COA found that the sentencing "court's failure to explain [the defendant's] sentence constituted plain error." No reasoning given for the sentence. The sentencing court did not address the defendant's argument that the sentence was disproportionate to another bank robber's sentence.
* The COA distinguished United States v. Vonner, 516 F.3d 382 (6th Cir. 2008), as in that case the court had offered "at least some" explanation for the sentence imposed. There was no explanation in the case at hand.
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