Wednesday, March 14, 2012

U.S. v. Del Toro-Barboza, No. 10-50487 (3-14-12) (Gould with Noonan and Ikuta).

In an appeal from bulk cash smuggling in violation of 31 U.S.C. 5332 and exporting money under 31 U.S.C. 5324, the 9th affirms the conviction and sentence. The defendants were caught with $500,000 in a box in the bed of their pick-up truck being driven to Mexico. Interesting that border agents just happened to look in the pick-up's bed, and pick out the one box among many. Cash? In the truck? Who knew? The prosecutor argued that the defendants did, and presented evidence of past trips, a cluster of calls from Mexico, and other circumstantial evidence. Ah, but the charges required specific intent, and did the government present enough evidence on that? Enough, held the 9th, to find that there was sufficient evidence, even if the reviewing court might have some doubt about the strength. The 9th did find that the two charges were multiplicitous, but did not violate double jeopardy because Congress did intend to punish twice the same conduct with different elements under Blockburger. The closing arguments were heated, and the prosecutor stated that the defense counsel played games, was like a Wizard of Oz, and so forth. The 9th did not find misconduct. Some arguments were in response to defense counsel's closing, and some were permissable. Trials can be hard fought, observed the 9th, and there may be some verbal cage fighting. The 9th let this go. The 9th found that jury instructions were not erroneous, and finally, the sentence was not unreasonable.


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