December Opinions of Note

Trying to play a little bit of catch-up, here are three earlier published opnions from this month.

US v. Alerre: Alerre and his co-defendants were doctors in South Carolina who were convicted of conspiracy, money laundering, and various drug distribution charges stemming from a prescription-selling and fraudulent medical practice. They were convicted on various charges after a jury trial. On appeal, Alerre and company argued that both that their defense attorneys were ineffective and the AUSAs had engaged in misconduct. That accusation was based largely on the use of the wrong "standard for criminal liability" when applied to the way their medical practice operated. Specifically, Alerre and company argued that the parties utilized a civil standard and that they were actually convicted of civil medical malpractice, not criminal distribution of drugs. The Fourth Circuit affirmed, rejecting that argument. Alerre and company's sentences were vacated and remanded per Booker and Hughes.

US v. Nunez: Jenny and Carlos Nunez were convicted by a jury of various drug conspiracy and distribution charges. Jenny gave a statement to DEA investigators prior to trial in which she implicated herself, Carlos, and others. Carlos filed a motion to sever the trials, arguing that a redacted statement would not sufficiently protect his Sixth Amendment rights. The district court disagreed and proceeded to a joint trial. At trial, the district court limited the use of the DEA report containing Jenny's statement due to Crawford. It was not introduced into evidence, although a DEA agent testified about what he heard Jenny say during her statement. After the jury began to deliberate, it asked for a copy of the DEA report of Jenny's interview. The Government moved to reopen evidence and introduce the report, which the court allowed, because it had been "extensively used" during direct examination of the DEA agent. The Nunezes objected. The jury got the report and convicted both Jenny and Carlos. On appeal, the Fourth Circuit reversed, holding that the district court erred in reopening the evidence after jury instructions had been given and after deliberations had begun.

US v. El Shami: El Shami was deported in 1994 after being convicted of two felonies in New Jersey. At the time he was a lawful permanent resident and married to a United States citizen. He returned to the US without permission and was discovered in Virginia in May 2003 and charged with unlawful reentry. El Shami moved to dismiss the charge against him, arguing that his deportation proceedings did not provide him with adequate due process protections. Specifically, he did not receive notice of his final deportation hearing and learned of his deportation nine months after it was ordered when INS agents arrested him. The district court denied the motion, holding that even if El Shami's due process rights were violated, he suffered no prejudice. The Fourth Circuit, 2-1, reversed. It noted that there was no evidence presented that El Shami received notice of his deportation hearing, in spite of residing continually at the address which he provided to INS when deportation proceedings were begun. In addition, he was prejudiced because there were sufficient mitigating factors to suggest that he may have avoided deportation had he been provided with judicial review. Judge Widener dissented, arguing that El Shami had not proven that he had a chance of remaining in the US.

Congrats to the Defender office in the Eastern District of VA for the wins in Nunez and El Shami!