Posted by The Blue Notes Blog Pop Quiz:
1. In a PSR interview and financial disclosure statement, how important is it for the client to give the probation officer truthful information?
2. Although precedent prohibits the appeals court from engaging in fact-finding, may an Eleventh Circuit panel reviewing a Fourth Amendment claim watch video evidence and draw its own factual conclusions?
3. Without testimony from co-conspirators, what other evidence can be used to show that a person voluntarily entered into a conspiracy?
The Latest Published Opinions:
After serving prison time for financial crimes, Prime had enough spunk left to demand that the government reimburse him for approximately $345 million in bitcoin he supposedly lost when a seized external hard drive with the cryptographic keys needed to redeem it was destroyed. The problem? Well, Prime had repeatedly attested in court that he owned “very little bitcoin,” a representation that he made on no fewer than three occasions: “[I]n his financial disclosure statement, in his interview with the probation office, and at his sentencing.” Just a tad skeptical of the shifting accounts of this vast treasure trove, the panel in United States v. Prime applied the doctrine of laches to reject the belated claim made under Federal Rule of Criminal Procedure 41(g). Practice pointer: Warn your clients that what they say about assets will be remembered for a long time and may one day be used against them in other contexts (especially in case that $345 million worth of bitcoin happened to slip their mind in the moment). [By Josh Moore].
Give a hoot, don’t pollute! Or you could go to prison. An employee of McDonalds called the police on Thomas for littering in their parking lot. When the officer responded, Thomas, sitting in a parked car, gave him a fake driver’s license. Things went downhill from there. In United States v. Thomas, the Eleventh Circuit held that the encounter was consensual at the start, because Thomas was allowed to get out of the car and throw away his trash. And that the officer had probable cause to arrest him once the license came back as not valid (and before Thomas maced the officer and drove away). So, the subsequent search warrant for the car (officers found drugs and fraud contraband inside) was valid. Although the district court did not make findings on whether the initial stop was a consensual encounter, the video was in evidence, and its accuracy was not objected to by counsel, so “a-fact-finding-we-go,” said the panel. Littering is bad, but 212 months for the drugs and fraud is worse. So, reduce, reuse, and recycle in proper containers! [By Nicole Kaplan].
Cremades was convicted of conspiracy to possess and possession with intent to distribute 500 grams or more of methamphetamine and 400 grams or more of fentanyl. Cremades received drugs from Arizona and Mexico via FedEx, and a search of his rented home discovered additional drugs, money, and payment receipts. Officers also discovered what they believed to be a ledger, and this ledger was admitted over the objection of Mr. Cremades’ counsel. In United States v. Cremades, the Eleventh Circuit affirmed the conviction and reminded us of some painful lessons: First, circumstantial evidence is just as damning to prove possession and knowledge as direct evidence; second, conspiracy can be proven without much involvement of, much less testimony from, any co-conspirators, because the same circumstantial evidence used to prove possession (e.g. drug amounts, receiving mail, ownership and control of an apartment) can show that the person entered into an agreement knowingly and voluntarily; finally, harmless error remains very much in fashion. In this case, the panel ignored a possible error in admitting a drug ledger because it was convinced that such ledger could not have affected the jury’s guilty verdict. So much for that black box of jury independence. [By Ross Brockway].
Quiz Answers:
1. Uh, very important.
2. Yes, when fact-finding provides a short cut for denying relief.
3. Any type of circumstantial evidence will do.
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