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Tampering With Witness On Facebook And YouTube: Posting “Snitches Get Stitches” Constitutes Witness Tampering

By Stephen N. Preziosi, October 22nd, 2014

criminal appeals lawyer, witness tampering, sufficiency of evidence, Facebook, youtube, identifying confidential informant

People v. Horton

New York Court of Appeals

2014 NY Slip Op 07088

Decided on: October 21, 2014

Using Facebook And YouTube To Tamper With A Witness

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether there was sufficient evidence to show that Defendant attempted to prevent a confidential informant from testifying where Defendant posted video surveillance of a drug bust on Facebook and YouTube, which identified the confidential informant and caused a flurry of discussion on Facebook denouncing the informant as a snitch.

Summary: Defendant’s best friend Jackson was arrested and charged with a drug sale. During that videotaped drug sale, a confidential informant wired with a microphone arranged a meeting with Defendant and Jackson, bought a quantity of cocaine from Jackson where he was later arrested.

Defendant uploaded a clip of the surveillance video on YouTube and provided a link on his Facebook page denouncing the confidential informant. The confidential informant reported Defendant to the investigators and he was arrested for witness tampering, tried, and convicted and sentenced to one year in jail.

On Appeal, Defendant argues that there was insufficient evidence that he had any knowledge the confidential informant was about to testify. The Court of Appeals affirmed sating that there was sufficient evidence to show that Defendant knew that the informant would testify and that he wrongfully sought to stop her from doing so.

See Also: Unto The Sons Of Anarchy: Juror’s Must Follow The Law As Instructed By The Trial Court Or Face Expulsion

Holding: The Court of Appeals held that there was sufficient evidence that Defendant committed witness tampering because Defendant’s best friend was charged with a drug sale and he knew that the confidential informant had worked with police to secure that charge.

A person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding Penal Law 215.10

Facts: Investigators planned a controlled, recorded drug purchase. They recruited a young woman, the confidential informant, to make the actual buy. The confidential informant was wired with a microphone and a camera was concealed in the back seat of her car to videotape. She arranged a meeting with Defendant Horton and his best friend Jackson where Jackson sold her a quantity of cocaine, a transaction captured by the hidden camera and recorded by the wire.

Jackson was arrested and went to Horton’s house with a copy of the videotape. Horton uploaded a clip of the surveillance video to YouTube and posted a link to it on his Facebook page, identifying her as an informant. Many statements were made by Defendant and others denouncing snitches in general and the confidential informant, including warnings that “snitches get stitches” and “I hope she gets what’s coming to her.”

The confidential informant contacted one of the investigators and charged Defendant with witness tampering. Defendant was tried in Town Court and convicted as charged. Defendant appealed to County Court, arguing that there was insufficient evidence that he attempted to prevent the confidential informant from testifying; that motion was denied and County Court affirmed.

Defendant appealed to the Court of Appeals where the Court held that there was sufficient evidence that Defendant had knowledge that his best friend was charged with a drug sale, and knew that the confidential informant had worked with the police to secure that charge. The Court of Appeals affirmed.

Legal Analysis: The Court of Appeals held that the evidence, seen in light most favorable to the People, is sufficient to establish that Defendant knew that the confidential informant might testify in a proceeding.

Penal Law 215.10 states that a person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding.

Here, after Defendant learned about his best friend Jackson’s arrest and the confidential informant’s role as a witness against Jackson, Defendant immediately posted statements on the internet that the jury might have reasonably inferred were “coded threats” that were intended to induce the confidential informant not to testify. The Defendant made Facebook posts identifying the confidential informant and the confidential informant was able to see these posts and the comments from other Facebook users that the posts generated.

The Court of Appeals held that in addition to the public postings on Facebook and YouTube, Defendant was in contact via Facebook messages with the confidential informant and her mother.

Thus, the Court of Appeals held that there was sufficient evidence that Defendant knew the confidential informant might testify in a proceeding, and that he wrongfully sought to stop her from doing so. The Court of Appeals affirmed.

Unto The Sons Of Anarchy: Jurors Must Follow The Law As Instructed By The Trial Court Or Face Expulsion

By Stephen N. Preziosi, October 21st, 2014

criminal appeals lawyer, jury instructions, Federal rules of criminal procedure 23(b)(3), jury misconduct

U.S v. Ellis

United States Court of Appeals for the Eleventh Circuit

13-10184

Decided on: September 3, 2014

Federal Rules Of Criminal Procedure 23(b)(3) Allows 11 Jurors To Decide A Criminal Case

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the District Court abused its discretion where the court replaced one juror during voir dire and whether the court committed an abuse of discretion under Federal Rule of Criminal Procedure 23(b)(3), which allows a court to remove and replace a seated juror before verdict, when it excused a sitting juror during deliberations for failure to follow the court’s instructions on the law.

Summary: In a case of life imitating art imitating life, Godwin was inspired by the dictional motorcycle gang in Sons of Anarchy, itself modeled on the real life Hells angels, to form his own band of brigands called the Guardians. Under his leadership, tge Guardians terrorizes the citizens of Jacksonville, Florida, through a steady onslaught of home invasion robberies, armed bank robberies, and other crimes.

Defendant was convicted under the Racketeer Influenced and Corrupt Organizations Act (RICO) for racketeering, and conspiracy to commit racketeering. At jury selection, a member of the jury explained that she would be unable to serve on the jury because she couldn’t care for her child and the District Court replaced her with an alternate.

During deliberations, Juror 10 refused to follow the court’s instructions, which led him to be excused. On Appeal, Defendant contends that the District Court abused its discretion under FRCP 23(b)(3) in excusing two members of his jury. The Court of Appeals affirmed stating that a District Court may excuse a juror for good cause, which includes that juror’s refusal to apply the law or to follow the court’s instructions, as well as replace any jurors who are unable to perform or who are disqualified from performing their duties

See Also: Self-Defense: Charge To The Jury Requires Sufficient Evidence  

Holding: The Eleventh Circuit Court of Appeals held that the District Court did not abuse its discretion when it removed a juror who stated she would be distracted by her concern for her child and would not give the case her full attention..

A District Court may remove and replace a seated juror before deliberations begin whenever facts arise that cast doubt on that juror’s ability to perform her duties.

The decision to remove a juror and replace him with an alternate is entrusted to the sound discretion of the trial judge whenever facts are presented which convince the trial judge that the juror’s ability to perform his duties as a juror is impaired. See Fed R. Crim. P. 24(c).

The Eleventh Circuit also held that the District Court did not err when it excused a member of the jury when that juror refused to follow the court’s instructions.

A trial Judge may excuse a juror for good cause, which includes that juror’s refusal to apply the law of to follow the court’s instructions.

Facts: Defendant Godwin was convicted for racketeering, and conspiracy to commit racketeering. At the beginning of the selection of his jury, the court notified the potential jurors that the trial was expected to four-and-a-half weeks. One of the jurors explained that there would be an issue because she was the primary care giver for her son. The District Court found that she would be affected by her opposition to being away from her child and replaced her with an alternate.

During deliberations, the Judge instructed the jury of a substantive RICO offense and of conspiracy to violate RICO. The Judge stated that the jurors were bound to follow the law as the Judge explained, even if they did not agree with the law. A Juror sent out a note stating that Juror 10 refused to follow the court’s legal instruction and to apply those instructions to the evidence.

Nine of the eleven jurors explained that Juror 10 said that he doesn’t agree with the law and didn’t care what the law said. The Government then moved to excuse Juror 10 under Federal Rule of Criminal Procedure 23(b)(3). On Appeal, Defendant challenges the District Court’s decisions to excuse both jurors. The Eleventh Circuit affirmed the District Court’s decision.

Legal Analysis: The Eleventh Circuit Court of Appeals held that they review a District Court’s decision to excuse a juror only for an abuse of discretion. United States v. Register, 182 F.3d 820, 839-40 11th Cir. 1999. In this case, Defendant contends that the District Court erred in excusing two members of his jury.

First, he argued statements made from the juror’s father to the judge about how distressed she was about having to serve on the jury and not being able to take care of her fourteen-month-old son during the duration of the trial.

The Eleventh Circuit held that a District court may remove and replace a seated juror before deliberations begin whenever facts arise that cast doubt on that juror’s ability to perform her duties. United States v. Smith, 918 F.2d 1501, 1512 11th Cir. 1990. Here, when the court convened the next morning the Judge immediately notified the parties of the phone call and the father’s statements. After being notified of the father’s statements, Defendant had an opportunity to address them and object to the court’s consideration of them, but he did not.

The Eleventh Circuit held that the District Court did not solicit the father’s statements, it brought them to the parties’ attention, and neither side objected to the court considering those statements. Under those circumstances the court did not err or abuse its discretion in considering the father’s statements. United States v. Puche, 350 F.3d 1137, 1152053 11th Cir. 2003. The District court justifiably found that the juror would be affected by her opposition to being away from her child and would be unable or unwilling to focus on the trial. Not only was the District Court’s decision well within its direction, but the Defendant has also failed to demonstrate that he was prejudiced by the removal of the juror.

The Eleventh Circuit held that the decision to remove a juror and replace him with an alternate is entrusted to the sound discretion of the trial judge whenever facts are presented which convince the trial judge that the juror’s ability to perform his duties as a juror is impaired. The court may replace any jurors who are unable to perform or who are disqualified from performing their duties. The Eleventh Circuit held that they will not disturb a District Court’s decision to remove a juror before deliberations absent a showing of bias or prejudice, which includes removal without factual support, or for a legally irrelevant reason. United States v. Fajardo, 787 F.2d 1523, 1525 11th Cir. 1986.

Once deliberations have begun, a District Court may excuse a juror for good cause, which includes that juror’s refusal to apply the law or to follow the court’s instructions, Federal Rule of Criminal Procedure 23(b)(3).

      Defendant next argues that the District Court abused its discretion in removing Juror 10(the second juror) after the jury began its deliberations. He argues that the answers that the jurors gave about Juror 10’s behavior during the deliberations failed to establish that he was refusing to follow the court’s instructions on the law, and instead showed that he was a juror in the minority who was doing his best to interpret those instructions.

The Eleventh Circuit held that the District Court explicitly applied the correct standard, which was whether there was a substantial possibility that the juror who was removed was merely espousing the view that there was insufficient evidence to convict instead of refusing to follow the court’s instructions.

Because the District court did that, the only question is whether it clearly erred in finding that the juror was refusing to follow the instructions.

The Eleventh Circuit held that it is seldom easy to establish clear error. It is especially difficult to do so in this situation where the District Court was on the scene, viewed the jurors as they described the problem, and therefore was uniquely situated to make the credibility determinations that must be made whenever a juror’s motivations and intentions are at issue.

In conclusion, the Eleventh Circuit held that Defendant’s jury submitted two notes to the District Court, both of which stated that one juror did not agree with the court’s instructions on the law. The District Court specifically found that the statements of every juror but Juror 10 were unequivocal, specific, consistent and credible, that Juror 10 refused to follow the court’s instructions, and that there no substantial possibility that Juror 10 was basing his disagreement or his decision on the sufficiency of the evidence. Accordingly, the Eleventh Circuit Court of Appeals affirmed the conviction.

Self Defense: Charge To The Jury Requires Sufficient Evidence

By Stephen N. Preziosi, October 20th, 2014

criminal appeals lawyer, jury instructions, sufficient evidence, self defense

U.S v. Feather

United States Court of Appeals for the Seventh Circuit

2014 WL 4803128

Decided on: September 29, 2014

Jury Instructions And Justification Defense Requires Sufficient Evidence

Blog by: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether the District Court erred when it refused to allow a jury instruction of self-defense when Defendant claimed he disemboweled the unconscious victim because he claimed he was faced with an imminent threat of physical harm.

Summary: Defendant and his cellmate had an argument that resulted in the cellmate’s death. At trial, Defendant asked to present his

testimony in support of self-defense; the Judge declined to instruct the jury on self-defense, concluding as a matter of law, the Defendant failed to support each element of the defense with some evidence. Defendant appealed to the Court of Appeals for the Seventh Circuit where it was affirmed.

See Also: Sinking The Boat Of Exculpatory Evidence: The First Circuit Goes On A Fishing Expedition Looking To Excuse The Government’s Bad Faith Destruction Of Evidence.

Holding: The Seventh Circuit held that the District Court did not err when the Judge declined to instruct the jury on self defense because there was no evidence that the victim was imposing an imminent threat of harm or deadly force when he laid unconscious on the cell floor and Defendant sliced into his abdomen with the razor.

A Defendant is entitled to a jury instruction if, among other things, the instruction reflects a theory that is supported by the evidence, and the failure to include the instruction would deny the Defendant a fair trial.

The Seventh Circuit held that in order to offer a defense of self-defense, a Defendant must, as a condition precedent, establish that he faced an imminent threat and had no reasonable legal alternatives to avoid that threat.

Facts: Defendant Cleveland “White Feather” and his cell mate Robert “Running Bear” got into an argument, which resulted in Bear’s death. Feather wanted to keep the lights on to finish writing a letter while Bear wanted the lights off. Feather claims that Bear came at him brandishing a blade and his intent was to “kill him”.

In Feather’s initial statement to FBI, Feather stated that he rendered Bear into a chokehold until he was unconscious and while he was unconscious, he retrieved a razor and cut open his abdomen. At trial, the District Court reserved its ruling and allowed Defendant to present his testimony in support of self-defense. At the close of evidence, the Judge declined to instruct the jury, concluding that the victim was not imposing an imminent threat of harm or deadly force and the jury found him guilty.

On Appeal, Defendant argues that the District Court erred when it refused to instruct the jury on self-defense. The Court of Appeals affirmed and found a lack of evidence of an imminent threat.

Legal Analysis: The Seventh Circuit Court of Appeals held that they review de novo a District Court’s refusal to allow a jury instruction on a defendant’s theory of defense.

The Seventh Circuit held that a Defendant is entitled to a jury instruction if, among other things, the instruction reflects a theory that is supported by the evidence, and the failure to include the instruction would deny the Defendant a fair trial. United States v. Jackson, 598 F.3d 340, 345 7th Cir. 2010.

The District Court may properly refuse a jury instruction on an affirmative defense if the Defendant has failed to support each element of the defense with some evidence. United States v. Tokash, 282 F.3d 962, 969 7th Cir. 2002.

In this case, at trial, the District Court reserved its ruling and allowed Defendant to present testimony in support of self-defense at trial. At the close of evidence, the judge declined to instruct the jury on self-defense, concluding, as a matter of law, that the victim was not imposing an imminent threat of harm or deadly force when he laid unconscious on the cell floor and Defendant sliced into his abdomen with the razor.

The Seventh Circuit held that in order to offer a defense of self-defense, a Defendant must establish that he faced an imminent threat and had no reasonable legal alternatives to avoid that threat. Tokash, 282 F.3d at 969-71. Self-defense is a viable legal justification only if the Defendant was faced with an actual, imminent threat of physical harm. This is so even in prisons where threats and violence are common.

The Seventh Circuit held that they recognize three “lesser evil” defenses that may justify otherwise unlawful action: duress, necessity, and self defense. United States v. Haynes, 143 F.3d 1089, 1091 7th Cir. 1998. Each of these defenses rests on the belief that a person facing harm is justified in performing an act, otherwise illegal, less injurious than the impeding loss. To warrant a jury instruction on a lesser-evil justification defense, the Defendant must present evidence that he faced actual, imminent harm and had no reasonable legal alternatives to avoid it.

The Seventh Circuit held that imminence is an essential element for self-defense because the threatened harm may, in fact, be avoidable. If the threat is not imminent, a retreat or similar step avoids injury. Significantly, the Court held that a Defendant’s subjective belief that he had no available legal alternatives—even if objectively reasonable—is not enough to proceed with a justification defense if the evidence is insufficient to establish an actual, imminent threat of physical harm.

Here, the District Court held that Defendant lacked evidence of an imminent threat. The Seventh Circuit held, even if the victim was the initial aggressor, he was unconscious when Defendant dragged him out from the bed and attacked him with the razor. An unconscious adversary does not pose an imminent threat of death or serious bodily harm. The Seventh Circuit held, by Defendants own account, the victim was still unconscious when he dragged him out from the bed and cut his abdomen open. That alone defeats the claim of self-defense.

            The Seventh Circuit held that Defendant also failed to present evidence that he had no alternatives to the use of deadly force. A Defendant seeking to justify his actions as a lesser evil must avail himself of reasonable legal alternatives to the use of unlawful force.

The Seventh Circuit noted that Defendant had several legal alternatives to the use of deadly force. The Court held that the cell was equipped with a duress button, and the Government presented ample evidence about the operation of the duress signal and how it was designed to require prison guards to respond to the source of the alarm.

The Seventh Circuit held that the Officer on duty that night testified that the unit was very quiet and if an inmate yelled or banged on his cell door, a guard would hear and immediately respond. Also, during any of the several periods of time when the victim was unconscious, Defendant could have yelled or banged on the cell door and asked for help but simply did not. Because no evidence supports Defendant’s claim of self-defense, the Seventh Circuit Court of Appeals held that the District Court properly refused to instruct the jury on the defense.

Sinking The Boat Of Exculpatory Evidence: The First Circuit Goes On A Fishing Expedition Looking To Excuse The Government’s Bad Faith Destruction Of Evidence

By Stephen N. Preziosi, October 16th, 2014

criminal appeals lawyer, exculpatory evidence, government's bad faith, destruction of physical evidence

U.S v. Bresil

Unites States Court of Appeals for the First Circuit

2014 WL 4744670

Decided on: September 24, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Judge Overboard! Jettison All Exculpatory Evidence Ye Lubbers!!!

Issue: Whether the Government violated Federal Rules of Criminal Procedure 16 (a)(1)(G), which provides that the Government must give a Defendant a written summary of any expert testimony that they intend to use during its case-in-chief at trial when the Government pronounced its intention to call an expert five days before trial, and, whether the Government violated Defendant’s due process rights by deporting potential witnesses and for destroying physical evidence.

Summary: Coast Guard and Border Patrol officials found Defendant Bresil with seventeen others in a boat off the coast of Puerto Rico. He was convicted of attempting to illegally reenter the United States. On appeal he argues 1) the District Court erred when it denied him a continuance after the Government announced that they were calling a witness five days before trial; 2) the Government violated his Due Process rights by sinking his boat after it took him into custody, preventing a conclusive determination of whether it contained enough fuel to make it to St. Maarten and; 3) deporting others found in the boat with him who would have testified that the boat was traveling to St. Maarten.

See Also: Marriage Shams For Profit: The Best Man Goes To Prison For Indecent Proposal

Holding: The Court of Appeals for the First Circuit held that the Government plainly violated Federal Rule of Criminal Procedure 16, however, in order to obtain a reversal based on Rule 16 claim, a Defendant has to show prejudice.

Rule 16(a)(1)(G) is intended to minimize surprise that often results from unexpected expert testimony, to reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through cross-examination.

The First Circuit Court of Appeals held that Defendants argument concerning the destruction of the boat fails because he does not show that there was anything else the Coast Guard could have safely done and that the Coast Guard was not technically capable of safely towing it to another location.

The First Circuit also held that the Government’s use of deporting potential witnesses did not violate Defendant’s Due Process rights because the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-aliens witnesses upon the Executive’s good-faith determination that they posses no evidence favorable to the Defendant in a criminal prosecution.

Facts: Coast Guard and Border Patrol officials found Defendant Bresil in the middle of the night with seventeen others in a boat twenty-three nautical miles off the coast of Puerto Rico. He was convicted of attempting to illegally reenter the United States. On appeal, he argues that the Government violated his Due Process rights by sinking his boat after it took him into custody, preventing a conclusive determination of whether it contained enough fuel to make it to St. Maarten and for deporting others found in the boat with him who would have testified that the boat was traveling to St. Maarten. The First Circuit Court of Appeals stated that because Defendant never showed that there was anything the Coast Guard could have safely done and wasn’t able to tow it to another location, his argument fails.

The Government also stated that the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-aliens witnesses upon the Executive’s good-faith determination that they posses no evidence favorable to the Defendant in a criminal prosecution.

Legal Analysis: The First Circuit Court of Appeals held that Rule 16(a)(1)(G) provides that at the Defendant’s request, the Government must give to the Defendant a written summary of any expert testimony that the Government intends to use. Rule 16(a)(1)(G) is intended to minimize surprise that often results from unexpected expert testimony, to reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert’s testimony through focused cross-examination.

Here, Defendant knew that the boat’s fuel usage would be at issue at trial, however, this does not excuse the Government of its duty under Rule 16(a)(1)(G) to give timely notice of its intent to call an expert to examine that issue in service of the Governments case. The First Circuit held that it is one thing to be prepared to argue about a fact at trial, but quite another to prepare to rebut an expert who can testify about implications of that fact in a way different from a lay witness. Prior to the Government’s notice, the Government gave no indication that it would be presenting evidence to the jury that, if the Government witnesses were right about the amount of fuel on board, the boat had only a fraction of the fuel it needed to make it to St. Maarten.

The Government’s notice was plainly untimely because it is unreasonable to expect a defense attorney in the midst of trial preparation to drop everything and try to obtain an expert five days before trial. United States v. Martinez, 657 F.3d 811, 617 9th Cir.2011. The First Circuit nonetheless affirmed that Defendant was not prejudiced because to obtain a reversal based on a Rule 16 claim, a Defendant has to show prejudice.

It turns out that, when pressed to explain after the trial what an expert actually could have said that might have helped Defendant’s defense, Defendant made no claim that any expert could have materially challenged the technical claims upon which the testimony of the Government’s expert was based. No defense expert would have challenged the opinion that, given the factual assumptions made by the Government expert, the boat could not have traveled two and a half to three nautical miles per gallon.

Defendant suggests that presenting his own expert would have allowed him to challenge the Government expert’s assumption. The First Circuit held that, however, those assumptions were just that—assumptions dependent on facts to which lay witnesses testified. Moreover, the First Circuit held that it was highly improbable that any changes in the facts could have changed the conclusion.

The First Circuit held that for these reasons, this case was an instance of foul, but no harm. The Court of Appeals cautions the Government, however, because by failing to disclose experts in a timely fashion, parties risk not only undesired and inconvenient continuances but also the exclusion of their expert’s testimony entirely..

Defendant next argues that the Government violated his due process rights by destroying the boat, which contained evidence of whether or not it had enough fuel to travel to St. Maarten, any by deporting other passengers, who, he argues, would have testified in his defense that the boat was traveling to St. Maarten.

The First Circuit held that Defendant’s argument fails because he didi not show that there was anything else the Coast Guard could have safely done. He provides no reason to doubt testimony of Government witnesses that is was unsafe for them to board the boat to conduct a more thorough inventory of its contents; that, had the boat been left where it was, it would have been a hazard of navigation and the Coastguard was unable to safely tow it to another location.

Moreover, because the evidence in the boat was no more than potentially exculpatory evidence, the Defendant is only entitled to a new trial if he can show that the Government acted in bad faith by destroying the boat. Defendant here does not argue, nor would the record support an argument that the Government acted in bad faith.

The Defendant’s argument concerning the destruction of his boat fails. In regards to Defendant’s argument that the Government violated his due process rights by deporting the other people on the boat who he says would have testified that they were going to St. Maarten, five passengers who claimed to be going to St. Maarten, one later recanted and pled guilty to illegally attempting to reenter the United States. Excluding Defendant that left three passengers who made un-retracted claims.

The First Circuit held that other Circuit Court’s have held that the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-aliens witnesses upon the Executive’s good-faith determination that they posses no evidence favorable to the Defendant in a criminal prosecution. Under this view, if the government deports a person with no reason to believe the person would give exculpatory testimony is some case, the Prosecution of that case does not violate the Defendant’s due process rights. Accordingly, the First Circuit Court of Appeals affirmed.

Marriage Scams For Profit: The Best Man Goes To Prison For Indecent Proposal

By Stephen N. Preziosi, October 15th, 2014

criminal appeals lawyer, marriage scam,, defraud united states in exchange for profit

U.S v. Serunjogi

No.12-2392

U.S Court Of Appeals for the First Circuit

Decided on: September 24, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether there was sufficient evidence to prove that Defendant knowingly and voluntarily entered into an agreement to participate in a sham marriage for the purpose of defrauding the United States and whether the District Court erred by not applying U.S.S.G § 2L2.1(b)(1), which allows for a three level downward departure if the offense was committed other than for profit.

Summary: Defendant was convicted of conspiracy to defraud the United States. Defendant facilitated in this bribe by committing marriage fraud. On Appeal, he challenges the sufficiency of evidence in his conviction and contends that the District Court erred by not allowing a three-level downward departure because the offense was committed other than for profit. The First Circuit Court of Appeals held that there was sufficient evidence that Defendant knowingly and voluntarily entered into an agreement to participate in a sham marriage and that Defendant aided and abetted the conduct; he was also responsible for the profit and was denied the three-level downward departure. The Court affirmed the conviction.

See Also: Sentencing Guidelines Cross-Reference §2c1.1(c)(1): Fake Cocaine And Government Sting Operation

Holding: The Court of Appeals for the First Circuit held that the evidence was sufficient for a rational jury to conclude that Defendant had knowingly and voluntarily entered into an agreement to facilitate a sham marriage and undertook several overt acts in furtherance of that agreement.

The First Circuit held that because Defendant aided and abetted the conduct of a co-defendant, he was also responsible for the profit and denied the three-level downward departure.

Facts: Defendant Ronald Serunjogi was convicted of conspiring with his friend Samson to arrange a sham marriage. Defendant facilitated this scheme by bribing his friend May by offering her money. Immigration Service questioned the couple separately, found that the couple had several conflicting answers, and referred the matter for criminal investigation.

May cooperated and signed a plea agreement. A jury convicted Defendant of conspiracy to defraud the United States. Defendant appealed to the First Circuit Court of Appeals where he challenges the sufficiency of evidence and contends that the District Court erred by not allowing a three-level downward departure in his base offense level. The First Circuit affirmed.

Legal Analysis: The First Circuit Court of Appeals held that they review challenges to the sufficiency of evidence de novo, viewing all evidence, credibility determinations, and reasonable inferences therefrom in the light most favorable to the verdict, in order to determine whether the jury rationally could have found that the Government established each element of the charged offense beyond a reasonable doubt. United States v. Portalla, 496 F.3d 23, 26 (1st Cir. 2007).

The First Circuit Court of Appeals will not weigh the evidence or make credibility judgments however; these tasks are solely within the jury’s province. United States v. Hernandez, 218 F.3d 58, 64 (1st. Cir. 2000).

In this case, Defendant was charged under 18 U.S.C. § 371 with conspiracy to defraud the United States, or any agency thereof. To prove that Defendant conspired to defraud the United States, the Government must establish 1) the existence of an agreement, 2) the unlawful object of that agreement, and 3) an overt act in furtherance of that agreement. United States v. Floyd, 740 F.3d 22, 28 (1st. Cir.2004.

Here, the unlawful object of the conspiracy was marriage fraud. Defendant argues that the Government did not offer any credible evidence of the existence of a conspiracy, as well as his knowing and voluntary participation in that conspiracy. He challenges the Government’s primary witness, May, asserting that her testimony was filled with inconsistencies that no rational jury could have credited her account.

The First Circuit held that, as the Government’s witness, rather then testify to events she could not recall, she freely admitted when she could not remember. A rational jury could perceive that exchange as the testimony of a person who was being completely honest about what she could not remember, and therefore find her to be credible. Because jurors are in the best position to judge a witness’s credibility, sufficiency challenges are a tough sell.

The First Circuit held that they will not assume the jury’s role of weighing evidence and making credibility judgments; instead they must reject only those evidentiary interpretations that are unreasonable, insupportable, or overly speculative. United States v. Spinney, 65 F.3d 231, 234 (1st. Cir. 1995). Here, the jury heard from both the witness and Defendant and was capable of weighing their credibility. The jury was entitled to draw its own inferences and conclusions from all of the evidence presented. It suffices if the conclusions that the jury draws from the evidence, although not inevitable, are reasonable.

The First Circuit Court of Appeals concluded that, when viewed in the light most favorable to the verdict, the evidence was sufficient for a rational jury to conclude that Defendant had knowingly and voluntarily entered into an agreement to facilitate a sham marriage and undertook several overt acts in furtherance of that agreement.