Tuesday, January 30, 2007

11th Circuit reinstates charges against Padilla

In a fifteen page opinion, the 11th Circuit has ruled for the Government on its appeal of the order dismissing Count I of the Padilla indictment. Here is the initial coverage by Vanessa Blum. More to follow from me once I've read the opinion. Initial coverage by me here.

Update -- So, I've read the decision. It's pretty bland. But if the law is supposed to make sense to the average citizen, check out these sentences in the concluding section:

Our analysis could stop there, but in light of the rather abstract nature of the
elemental analysis, we think it wise to elaborate briefly on the concept in practical terms. It appears that the trouble in this appeal stems from the interrelatedness of the three counts at issue. As we have noted, § 956 (the charge in Count One) serves as an object offense for § 2339A (the charge in Count Three), which serves as an object offense for § 371 (the charge in Count Two). But while these three charges are interrelated, they are not interdependent. The object offenses on which Counts Two and Three are premised are not themselves elements of those counts. In other words, to use Count Three as an example, the Government need not prove all the elements of § 956, the object offense, in order to satisfy the elements of the substantive § 2339A charge.

Yikes. The law has taken a strange path on prosecutorial decision-making, hasn't it? I think what the court is saying is that the law permits prosecutors to charge the same facts under lots of different legal theories. But does that make any sense? Do you think jurors understand this very fine distinction? Shouldn't we be making it easier for juries, not harder? I think Judge Cooke had the right idea -- the prosecutors need to figure out how it wants to proceed on this case and go forward on that theory. Prosecutions should not be multiple choice tests.


Anonymous said...

The Law has taken strange path? Not really. The Blockburger test has only been around for, oh, what, sixty some years?

Anonymous said...


I think the only people that write into your blog are sinister AUSAs blinded by the white-hot light that shines from thier immaginary hats as they think of new ways to argue that evidence for the defense is not brady material...and me.

Anonymous said...

The 11th Circuit opinion in this case is unremarkable. The 11th Circuit applied the Blockerburger test, rather straightforwardly, and found the district court in err. That's it. If anyone has a problem with the Supreme Court decision in Blockburger, I would invite that person to run for Congress to legislate. Last time I checked, Article III judges are supposed to follow the law, which was clear in this case.