Criminal practice and procedure

This take-home examination consists of two (2) questions. Each question, in turn, contains several parts which must all be addressed.

The exam is “open book.” You may refer to any material to answer the same. Keep in mind, however, that answering the exam is not a simple task; rather, one that requires in-depth analysis and discussion of the various issues studied in the course.

Pablo Pueblo and Billy Jean were arrested for importing to the United States from Colombia in excess of fifteen (15) kilos of heroin abroad a vessel. They were apprehended approaching the marina in Fajardo, Puerto Rico.

A grand jury in the District of Puerto Rico indicts both Pueblo and Jean for aiding and abetting each other in the importation and possession with intent to distribute the drug. (See 21

U.S.C. §§ 841, 952).

Eventually, both defendants enter guilty pleas pursuant to plea agreements in which they stipulate they are each accountable for five (5) kilos of heroin. Said amount carries a mandatory minimum of ten (10) years imprisonment and a maximum of life. The pleas are governed by Fed. R. Crim. P. 11(c)(1)(A) and (B).

PART A

Pablo Pueblo has no criminal record. What option(s), if any, does he have to obtain a sentence below the mandatory statutory minimum? How may he qualify for the same?

PART B

Billy Jean, on the other hand, has an extensive criminal record in the Puerto Rico local courts. What option(s), if any, does she have available to obtain a sentence below the mandatory statutory minimum? How may she qualify for the same?

-2-

The applicable Sentencing Guidelines range for Pablo Pueblo is 108-131 months. (Take this as correct). Assuming no mandatory minimum applies, what discretion, if any, would the sentencing judge have to sentence him to a term of imprisonment of:

i) 70 months?

ii) 35 months?

iii) time served?

What grounds, if any, could you argue under 18 U.S.C. § 3553(a) for such a variance? (You may be as creative as possible and make-up any facts that warrant a variance.)

Assume now further, that the plea agreement stipulates a specific sentence of 108 months. Under what circumstance(s) must the sentencing judge follow this recommendation? When, if ever, may the judge reject such sentence recommendation?

In the case of Billy Jean the Sentencing Guidelines call for a sentence of 168-210 months, taking into account her criminal record. (Also take this as correct.) The sentencing judge, notwithstanding, sentences her to 300 months without further explanation other than noting her criminal record.

You are Billy Jean’s attorney on appeal. What arguments, if any, can you make to vacate the sentence and remand for re-sentence. What are your chances of prevailing?

Now assume that the sentencing judge, at the time of sentencing states that he has considered all the Section 3553(a) factors and finds that the sentence of 300 months is sufficient but not greater than necessary. In doing so, he states that: (i) Billy Jean was just released from prison for drug trafficking, (ii) during the past ten years she has had five (5) drug-related state convictions, (iii) at the time of her arrest she was carrying a false Florida driver’s license under the alias Jane Foster, (iv) upon arrest she admitted she had imported drugs to the United States on three occasions, and, (v) while in prison she coordinated drug transactions inside and outside of the penal facility, and was indeed convicted for this.

What chances does Billy Jean have of prevailing on appeal of her sentence?

Tom Molester is indicted for the production and distribution of child pornography in violation of 18 U.S.C. § 2252. He faces a mandatory minimum sentence of fifteen years imprisonment.

The multiple images and videos object of the indictment were initially the result of a quality control process which is regularly conducted by ATT for its internet customers. Tom Molester was one of such customers at the time. ATT immediately notified the FBI, and provided in a disc copies of all child-pornography images and videos.

Afterwards, and with the above evidence in hand, the FBI obtained from a Magistrate Judge a search warrant to inspect Tom Molester’s e-mail, internet and cellular phone files. As a result of the same, the FBI found thousands of more videos and images, many involving pre-pubescent minors. Also, the FBI found a plethora of e-mails between Tom Molester and Juan Potranca, a resident of the Dominican Republic.

The FBI, in turn, sent an undercover agent to the Dominican Republic. The agent, without a warrant, was able to hack Potranca’s Dominican server and obtain multiple files of communications and exchanges of child-pornography with Tom Molester.

The agent also broke into Potranca’s residence and seized more incriminating evidence, including the equipment that Tom Molester and Juan Potranca used to film the minors. The agent

conducted said seizure without a warrant.

Tom Molester moves to suppress:

i) all evidence provided by ATT to the FBI, and,

ii) all evidence obtained in the Dominican Republic by the FBI without a federal search warrant.

You are the presiding district judge. Rule on the motion.

Tom Molester further files a Franks motion to suppress the FBI’s search pursuant to the

warrant. In the same, he alleges that the FBI misrepresented how it initially came upon the evidence provided by ATT. The search warrant incorrectly states that a cooperating witness provided information and evidence of Tom Molester’s criminal activity. The prosecutor, in turn, admits that said statement was provided in error rather than in reckless disregard for the truth, by cutting and pasting from an earlier warrant. The government also argues, that even if the affidavit contained incorrect information, it did not rise to the level required under Franks. More so, during the search,

the agents acted in good-faith reliance on a seemingly valid search warrant.

You are the presiding district judge. Rule on the motion.