Friday, September 09, 2011

Self-representation; CCE: and 851 notice

In US v. Prince Isaac, No. 08-4755 (Aug. 23, 2011) (click here) the 3rd Circuit held:

(1) Defendant who was representing himself was not denied his 6th Amendment right of self-representation by judge's failure to include him in two side-bar conferences (at which stand-by counsel did participate) since defendant never objected and seemed to acquiesce in stand-by counsel's participation;

(2) Instruction on CCE was error, as conceded by the government, because several of the counts it listed as counts that could qualify as the predicate drug distribution felony did not qualify; but error, to which there was no objection, did not rise to plain error because jury found defendant guilty on all the drug distribution counts, thus easily satisfying this element;

(3) The requirement of written notice of a prior conviction under 21 USC 851 (to enhance the mandatory sentence) is jurisdictional, and the lack of actual notice prior to trial in this case constituted plain error.  "[T]he requirements set out in 851 are mandatory and a district court may not impose an enhanced sentence unless the defendant has been notified of the 'strikes' in compliance with these provisions."

When calculating intended loss, the question is not whether the defendant could have sold the items at the prices claimed by the government but whether the defendant intended to do so

The defendant in United States v. Kirschner ,  __ F.3d __, 2021 WL 1570250 (3d Cir. April 22, 2021), imported counterfeit coins and bullion ...