Wednesday, March 28, 2012

U.S. v. Major, No. 10-10147 (3-27-12) (Wallace and M. Smith with a concurrence and dissent by Noonan).

Defendant was convicted for a series of robberies under 18 U.S.C. 1951 and 924. Guns were used, and the sentences ran consecutively. Defendant was sentenced to 8955 months (746 years, and 3 months). On appeal, the 9th affirmed the convictions. It held that admission of 404(b) evidence as to even more robberies was not error because the evidence went to identity. Moreover, evidence of a jacket from a gang was also properly admitted. Defendant argued that the sentence was unduly harsh, but the 9th held that, given the crimes, the sentences were not unconstitutional as being cruel and unusual. There was a question as to whether the sentences ran consecutive to a brandishment or a discharge of a weapon. The verdict form did not indicate which gun charge came first (a discharge or brandishment). Under the rule of lenity, brandishment must be considered first. Hence, the other gun charges run after brandishment. The 9th rejected requiring verdict forms with either the most serious gun charge first or the least. The 9th leaves open ways to determine which gun count was found first by the jury. The defendant will still die in prison even after the resentencing. Noonan, in a strange dissent from the sentence, states that it should not be characterized as "harsh" as does the majority because it simply cannot be executed. No one lives that long. Noonan does not want to participate in this empty gesture.

U.S. v. Rodrigues, No. 11-15530 (3-27-12) (Trott with Goodwin and Murguia).

Defendant was a state director of a union. In entering insurance and dental contracts for the union's members, he insisted the providers include consultant fees. The consultants were family members who, as determined by the investigation, provided no consulting. Moreover, the money ended up with the defendant. He was convicted of numerous fraud and embezzlement, money laundering, and theft of honest servcies. The latter convictions had to be limited to bribes and kickbacks as required under Skilling. The jury instructions did not have this link or element. However, the error in these instructions were harmless. The evidence was overwhelming, and the convictions necessarily had to involve kickbacks. The convictions and sentence were confirmed.


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