Posted by BNB Quiz Questions:
1. When a sentencing court measures the loss amount in a fraud conspiracy, how must it go about curating the loss amount for each individual co-defendant?
2. What does the phrase “only available caregiver” mean in U.S.S.G. § 1B1.13(b)(3)(C), the “Family Circumstances” provision in the compassionate-release guideline?
3. Expert testimony about eyewitness credibility is categorically excluded as inadmissible. Is expert testimony about memory reliability likewise categorically inadmissible?
Eleventh Circuit Opinions:
In US v. Barry, the panel reminds us that a district court is required to tailor the loss amount to the individual defendant. Barry was one of a group of co-conspirators convicted of buying cigarettes from membership clubs with stolen credit cards. The district court reflexively held Barry responsible for the total loss amount of the entire group, finding simply that a “conspiracy . . . equates to jointly undertaking criminal activity.” On appeal, the panel found this to be error. The sentencing guidelines require a defendant to be held accountable for all acts that he “committed, aided, abetted, or willfully caused.” U.S.S.G. § 1B1.3(a)(1)(A). Plus, a defendant may also be held responsible for the conduct of others when that conduct was (1) within the scope of the jointly undertaken criminal activity, (2) in furtherance of that criminal activity, and (3) reasonably foreseeable in connection with that criminal activity. U.S.S.G. § 1B1.3(a)(1)(B). Here the district court failed to make any of the findings required in subsection (a)(1)(B), so the panel vacated the sentence and remanded for a new hearing. Shout out to our new CJA Panel Representative, Lynsey Barron. [By Wes Bryant].
In US v. Robelo-Galo, the Eleventh Circuit held, on an issue of first impression, that a defendant seeking a reduction in sentence pursuant to U.S.S.G. § 1B1.13(b)(3)(C), as the “only available caregiver,” “must demonstrate that no other person is qualified and free to provide the needed care.” The panel identified several factors for district courts to consider when making this “fact-intensive inquiry,” including: “whether legal barriers prevent the potential caregiver from providing care”; “physical or logistical barriers to caregiving”; “knowledge or capability-based barriers affect the caregiver’s qualifications”; “familial dynamics or relationship history that may bear on an alternative caregiver’s availability”; and “any economic, financial, or employment-related barriers that would impact a caregiver’s availability.” The panel affirmed the district court’s denial of Robelo-Galo’s motion, finding no “clear error” in the district court’s conclusion that Robelo-Galo was not “the only available caregiver” for his incapacitated grandfather, in Honduras, because another “close family member” was “also available”—even though that family member worked and lived four hours away, did not have a car, could not relocate to the grandfather’s town because of his duties to his own children, and did not have space for the grandfather to live in his home. [By Sara Kane (AFPD in the SDFL)].
In US v. Zappey, a teacher was charged with sexually abusing his former elementary-school students. To defend against the now-adult victim-witnesses, Zappey attempted to present two experts to testify about memory formation, memory decay, independent verification of memories, etc. But the trial court seriously limited that expert testimony―allowing one defense expert to address only those matters that the government’s expert had addressed, and excluding as cumulative all testimony from the second defense expert. On appeal, the Eleventh Circuit affirmed. It explained that expert testimony related to the weight and credibility of an eyewitness must categorically be excluded, so much of the proposed expert testimony was reasonably excluded for improperly commenting on witness credibility. Although expert testimony on memory reliability is distinguishable from testimony on eyewitness reliability and can be admissible (since memory reliability is not as easily tested through cross-examination), the trial court, as the gatekeeper, was in the best position to decide the admissibility of Zappey’s expert testimony. Practice tip: Frame expert testimony as testimony about memory reliability; steer away from expert testimony that attacks eyewitness reliability. [By Ashley Martin].
Quiz Answers:
1. The court must apply only the loss the defendant himself caused, plus any loss committed by others that was within the scope of the jointly undertaken activity, that was in furtherance of that plan, and that was reasonably foreseeable.
2. In asking whether the person in prison is the “only available caregiver,” a district court should consider other family members’ legal barriers, logistical obstacles, family dynamics, economic burdens, and much more.
3. No, expert testimony about memory reliability is not categorically inadmissible.
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