Tuesday, February 25, 2014

Denied Three Times (by Moses--not Peter) While Trying to Make a Record

This isn't exactly a white collar case, but America is our beat. Few things are more frustrating to a competent criminal defense attorney than a judge who won't allow her to make an adequate record. This problem seems to be getting worse in the federal system. What a nice surprise then that the Fifth Circuit, through Judge Ed Prado, is not having any of it.  In United States v. Salazar, the district court revoked defendant's supervised release, sentenced him to a prison term, and imposed an additional supervised release term with new conditions. The new supervised release conditions were not announced by the trial court until near the end of the sentencing hearing. When defense attorney Angela Saad tried to object, the judge (Alia Moses) cut her off three times. On appeal, Salazar challenged Supervised Release Condition 6. The government argued for plain error review because Saad's objections to the new conditions were global and not specific. Salazar urged that abuse of discretion was the appropriate standard, as the judge had cut off counsel's attempts to object in more detail. The Court sided with Salazar. "Salazar had no reason to object to the conditions prior to sentencing, as they were not announced until that time." Moreover, "[c]ounsel...initially objected broadly to the conditions on account of their overly burdensome nature, but before counsel had an opportunity to finish her sentence, the court overruled her objection three times. Salazar's counsel reasonably believed that the district court would not have welcomed or entertained any further discussion of the issue." The Court ultimately vacated Condition 6, because the trial court had not adequately explained why it was reasonably related to statutory supervised release factors. This is a good case for a criminal appellate attorney to keep in his back pocket. It is altogether fitting that Prado wrote it. He was an outstanding trial judge who was always respectful to attorneys on both sides, and let them try their cases.



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