Highlights of this Issue:
United States v. Booze, 108 F.3d 378 (D.C.Cir. 1997) (Judge Rogers)
Both of these cases deal with the critically important question of how much drugs may be attributed to a defendant in a drug conspiracy case; and both cases examine the import of the D.C. Circuit's recent ruling, in U.S. v. Dudley, 104 F.3d 442 (D.C.Cir. 1997). Dudley held that sentencing courts must make "detailed findings with respect to the evidentiary links tying" a particular defendant to the amount of drugs for which the district court finds him responsible. (Dudley, id. at 447). In both of these cases the lower courts adopted generalized recommendations contained in the presentence reports that the instant defendants should be held responsible for the entire quantity of drugs attributable to the conspiracy - but without making the particularized findings called for by Dudley.
In both cases, the defendants failed to object at sentencing to the quantity of drugs attributed to them. On appeal, one panel of the Court ruled, in the In re Sealed Case, that the sentence had to be vacated because the lower court had failed to make detailed findings called for by Dudley. In the Booze case a different panel of the Court concluded that "notwithstanding the absence of Dudley-type findings, . . . there is no basis for reversal and remand." (Id., at 382).
And why these different approaches? Well, the Booze court apparently felt that there is a "wildly implausible" exception to the Dudley rule. It stated that unless the sentencing court "committed obvious error by relying on findings that are 'internally contradictory, wildly implausible, or in direct conflict with evidence presented at trial', . . . uncontested contentions, as appear in a presentence report, for example, are considered to be supported by indicia of probable reliability and are sufficient to support factual findings for sentencing purposes." (Id., at 382). It has been said that the principal purpose of the Sentencing Guidelines was to avoid reducing sentencing to a game of chance "in which the length of the sentence is determined by the draw of the judge." U.S. v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996). Based on these two cases it appears that the "game of chance" also applies to different panels of the same appellate court.
United States v. Corona, 108 F.3d 565 (5th Cir. 1997) (Judge Higginbotham)
Both of these cases deal with the Federal arson statute (18 U.S.C. § 841(I)) and the issue of whether every case of arson is a Federal crime, as the Government likes to allege. Both decisions relied heavily on the Supreme Court's ruling in Russell v. U.S., 471 U.S. 858 (1985), where the Court ruled that Congress intended the arson statute to apply to "all business property, . . . but perhaps not every private home." In Gaydos, the Third Circuit vacated an arson conviction that was based on the burning of a private house, because it determined that the Government had failed to prove that the house was used, or intended to be used, in an activity affecting interstate commerce at the time of the fire. In Corona, the Fifth Circuit affirmed an arson conviction for the burning of a two story residential building and an adjacent building; but it gagged at the Government's overkill attempt to impose three separate punishments for arson, conspiracy to commit arson, and for using fire to commit conspiracy to commit arson.
United States v. Griffiths, 954 F.Supp. 738 (D.Vt. 1997) (Judge Sessions)
United States v. Bissell, 954 F.Supp. 841 (D.N.J. 1996) (Judge Lechner)
United States v. Blackwell, 954 F.Supp. 944 (D.N.J. 1997) (Judge Lechner)
As these four cases show, the ever-changing law regarding downward sentencing departures continues to be a major topic of judicial concern.
In the Perkins case, the issue was whether the Government could appeal a downward departure granted by the sentencing court when it failed to object to the departure at the sentencing hearing. The lower court granted a downward departure of 52 months (from 292 months to 240 months) to a black defendant who was convicted of distributing crack cocaine. In granting that downward departure, the court expressed the view that in its "sense of symmetry and justice" the resulting sentence "more than satisfies any criminal justice need for that much time." The Fourth Circuit rejected, as an impermissible basis for a sentencing departure, any consideration of disparate sentences among co-defendants; but its more significant ruling was that the Government could appeal a sentencing decision to which it had previously failed to object. Relying on the much debated Supreme Court decision in U.S. v. Olano, 507 U.S. 725 (1993), the Court ruled that the error was plain error and that the Government could appeal to correct an error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." In making that ruling, the Court did note that the Fifth and Eight Circuits have held that allowing illegal sentences to stand would not result in a manifest injustice.
In the Griffiths case, Judge Sessions granted a 13-level sentence reduction (from level 21 to level 8) to a defendant, principally on the grounds that the defendant was "a young, attractive, extraordinarily sensitive young man who would quite possibly be victimized in prison . . . [and who] . . . . has demonstrated exceptional acceptance of responsibility . . . [and] has made extraordinary efforts at rehabilitation." (Id., at 743). Judge Sessions concluded that the defendant's progress in turning his life around "would not only be slowed, but utterly frustrated if [he] were incarcerated."
In the highly publicized Bissell case, an obdurate Judge Lechner refused to grant a downward departure to the wife of a former county prosecutor (who subsequently fled and then committed suicide) even though the Government joined in a request for a three level departure. In his decision, Judge Lechner rejected any departure on a number of grounds, including extraordinary family responsibilities (U.S.S.G. § 5H1.6); reliance on professional advice; susceptibility to abuse in prison; coercion and duress (U.S.S.G. § 5K2.12); diminished capacity (U.S.S.G. § 5K2.13); and substantial assistance ot the Government (U.S.S.G. § 5K1.1). In the end, however, he did grant a two level reduction of her sentence "because of the unique circumstances of the public suicide of Nicholas Bissell and the resultant trauma to the Bissell children."
Finally, in the Blackwell case, the same Judge Lechner faced another request for a downward departure based on extraordinary family circumstances. Once again, the Government joined in that request. Judge Lechner angrily noted that the Government's position not only was contrary with Third Circuit precedent which disfavored such departures, it was also contrary to the position the Government had taken a week earlier in a different case involving "an inner-city defendant . . . a single mother with two minor children." He therefore questioned the Government about its posturing. The Government's responses so thoroughly infuriated the volatile Judge Lechner that he barked that the Government's answers were "incredible," lacked "veracity," and were "disingenuous." (Id., at 980). He also suggested that the Government position was calculated to support and justify its request for a downward departure in the Bissell case - which was scheduled fore the next day. Based on all those reasons, Judge Lechner decided to recuse himself and have that issue decided by another judge.
Here's another case that deals with the raging, but hopelessly confused, question of whether improper jury instructions constitute "plain" error, within the meaning of Rule 52(b) of the Fed.R.Crim.P. The defendant in this case was charged with being a felon in possession of a gun in violation of 18 U.S.C. § 922(g)(1). He stipulated with the Government that he was a prior convicted felon for purposes of his trial. When the judge charged the jury in this case, he stated: "Since the defendant admits that he was previously convicted of a felony, you will find that the government has established this element of the offense . . .". The defendant failed to object to that instruction at the time of trial; but he later appealed, arguing that the trial court's instruction was effectively a mandate to the jury which deprived him of his Constitutional right to have the jury determine every element of the crime for which he has been charged.
The Sixth Circuit disagreed. It held that even if there was plain error and even if the defendant was prejudiced by it, the error did not warrant reversal. Why? Because "there is absolutely no possibility that Jones is actually innocent"; and in such a case the courts can refrain from exercising their discretionary authority to reverse the conviction. To begin its analysis, the Sixth Circuit observed that there is only "sparse case law" addressing the question at issue, and "what little case law exists is divergent and conflicting." (Id., at 671). (In fact, as evidenced by the rash of recent cases on this topic (see, e.g., Peck v. U.S., 106 F.3d 450 (2nd Cir. 1997); Waldemer v. U.S., 106 F.3d 729 (7th Cir. 1996); Cooper v. Taylor, 103 F.3d 366 (4th Cir. 1996); and U.S. v. Wiles, 102 F.3d 1043 (10th Cir. 1996)), there is no paucity of existing case law - although it certainly is true that what does exist is both "divergent" and "conflicting.")
The majority in this case concluded that a determination of plain error requires an examination of "four distinct, though interrelated, analyses: (1) whether an error occurred in the district court; (2) if error occurred, whether the error was plain; (3) if the error was plain, whether the error affected substantial rights; and (4) 'even if all three factors exist, we must then consider whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings'." (Id., at 670). Translated, that means there is a new standard that applies to appeals: No relief will be granted - even in cases involving prejudicial, Constitutional error - unless the court is convinced that approving the conviction will seriously affect the fairness, the integrity or the public reputation of the courts.
Six of the judges on the en banc panel concurred in the result, but sharply disagreed with the majority's reasoning - particularly the majority's conclusion that "by stipulating to elemental facts, a defendant waives his right to a jury trial on that issue." Thus, the concurring judges questioned the majority's assumption that the mere stipulation to the factual basis of an element was sufficient "to constitute a knowing and voluntary waiver of [the defendant's] constitutional right to have a jury determine his ultimate guilt on every element of the offense for which he is charged." (Id., at 676).
Perhaps the most interesting aspect of the concurring opinion was its candid acknowledgment that the unspoken but underlying concern of the courts when dealing with this issue is its underlying premise: jury nullification. While most courts refuse to admit that jury nullification even exists, at least the concurring judges in this case were willing to discuss that forbidden topic. They wrote: "We too are disturbed by the discomforting reality of jury nullification. Arguably, when a court devises a rule that preserves and protects the jurors' power to disregard their oath to apply the law as given to them, to the facts as found by them, the court makes a mockery of the jurors' oath and licenses lawlessness in the name of justice. However, even if a jury does not have the lawful authority 'to bring in a verdict in the teeth of both law and facts,' . . . it unquestionably has the power to do so." (Id.).
Perhaps, now that at least some judges have been willing, publically and honestly, to isolate the real underlying concerns behind this dreaded issue, maybe other courts will be more willing to accept the principle that plain, Constitutional errors deprive a person of a fair trail and thus warrant reversal of any convictions obtained - without resorting to God-like fact-findings, such as the one in this case that "there is absolutely no possibility that [the defendant] is actually innocent."
The defendant in this case sought a writ of habeas corpus on the grounds that his State court felony conviction for possession with intent to deliver over 650 grams of cocaine after an earlier conviction for possession of the same substance violated his rights under the Double Jeopardy Clause of the Constitution. It probably helped that he was asking a Federal court to overturn a State conviction, because the Federal courts always seem more inclined to reverse State convictions than their own Federal convictions. In any event, the Sixth Circuit did vacate the second conviction, which it held resulted from a "single criminal transaction." In the process, the Court reviewed the "same elements" test promulgated in the Supreme Court's decision in Blockburger v. U.S., 284 U.S. 299 (1932); but it noted an important but often ignored exception to the scope of the Blockburger rule.
The Court wrote: "Although it plays a prominent role in double jeopardy analysis, the Blockburger test is insufficient where, as here, the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction. Indeed, multiple charges that satisfy the Blockburger standard, and thus may properly be joined in a single prosecution, may nevertheless violate double jeopardy if prosecuted successively. . . . If the same evidence will serve for both convictions - irrespective of whether the convictions are under statutes that satisfy Blockburger's "same elements" test, the second prosecution is barred by double jeopardy. . . . Stated another way, successive prosecutions based on the same 'fact situation' are barred by double jeopardy if the separate charges could have been joined and no significant additional fact was required in the second prosecution." (Id., at 679-80).
This case, involving a late-night search and seizure, covers a full panoply of many of the issues raised in such cases. Two Hispanic defendants, staying in a motel near an airport in Wisconsin, were roused from bed by the police sometime after 11 p.m. one night, principally because they were deemed suspicious since they met the highly-elusive "drug courier profile." (For more on the "laughable" criteria that make up the chameleon-like drug courier profile, see the Quote of the Week, below.) The police concluded that these two individuals were highly suspicious because: (a) they were driving a two-door car - which in their mind constituted a "target" vehicle; (b) the car had a valid license plate from the State of Florida - a "source" state; (c) the car was parked near an airport and an interstate highway; and (d) a police check revealed that the car was registered to a person who had a suspended driver's license and a prior arrest.
After keeping these "suspects" under surveillance for some four hours, the police finally decided to question them - in their motel room and after they had retired to bed. There was, of course, a dispute about whether the sleepy-eyed suspects voluntarily admitted the police and consented to any search; but the ensuing search did lead to the discovery of a half-smoked marijuana cigarette and some packages that contained a substance that "looked and smelled like cocaine." The defendants were arrested and charged with possession of cocaine with intent to distribute. They filed a motion to suppress the evidence seized on the grounds that their seizure and the search violated the Fourth Amendment. When their motion was denied, they pled guilty; but they reserved their right to appeal.
On appeal, the Seventh Circuit reversed. Essentially, it concluded that the police had converted what started to be a consensual encounter into an investigatory stop that was not supported by any probable cause. It differentiated between seizures that occur in open, public places (such as an airport, train station or on the street) and seizures that occur in confined spaces (such as a bus or a home - where "as a practical matter [it is difficult for the suspects] to terminate the encounter by leaving the scene").
The Court also observed that encounters at a person's dwelling in the middle of the night are especially intrusive. Under the facts of this case, it concluded that the initial seizure was not supported by a reasonable suspicion, which therefore vitiated the subsequent "consent" to search the motel room, and it ruled that the evidence seized must be suppressed as fruit of the poisonous tree. Judge Coffey filed a lonely, splenetic dissent, in which he railed that, notwithstanding the Constitution, judges "must not wear blindfolds and disregard the ever-growing 'cancer of drugs on humanity'. . . . or ignore the potential impact our decisions have on the good-faith efforts of law enforcement officials to eradicate that cancer." (Id., at 721).
Not without reservation, the Seventh Circuit again affirmed what virtually every other circuit has ruled on the issue of whether the sentencing court has the power to modify a sentence on counts that were not appealed after the defendant has successfully challenged a § 924(c) gun conviction in an appeal under 28 U.S.C. § 2255. Citing its earlier decision in U.S. v. Smith, 103 F.3d 531 (7th Cir. 1996), the Court adopted the so-called "sentencing package" theory and held that the district court has the authority to restructure a defendant's entire sentence even when the prisoner's petition attacks the validity of just one of the counts of conviction.
However, the Court reached that conclusion "with some apprehension." It wrote: "These precedential cases show that our analyses of resentencing issues increasingly have become exercises in semantics rather than discussions of traditional notions of constitutional law. It strikes us as odd that a district court may so easily circumvent the Double Jeopardy Clause (in a § 2255 proceeding, no less, which is a remedy exclusive to prisoners). . . . Although we concluded in Smith that there is ‘enough life left in the concept of the sentencing package" [Smith, 103 F.3d at 535] to permit resentencing on unchallenged counts of a multicount conviction on a § 2255 petition, we believe that we have stretched the conceptual fiction of the sentencing package to its limit." (Id., at 729-30).
This was one of those massive drug conspiracy cases that charged twenty-seven people as co-conspirators. Twenty two of them pled guilty; and five went to trial. One of the many issues raised in this appeal was a claim that the defendants who went to trial were seriously prejudiced when the Government was permitted to introduce into evidence the guilty pleas of five co-defendants who did not testify at trial. The Government offered those pleas, and the district court allowed them into evidence, allegedly on the grounds to help "place the charged conspiracy 'into context,' that is, to explain to the jury what became of the named co-defendants who were not on trial and who had not testified."
The Seventh Circuit readily acknowledged the prejudicial risks associated with the use of such pleas. "Disclosing the pleas, when the jury never has an opportunity to hear from the persons who pled guilty, presents the risk that the jury will impermissibly infer the guilt of the defendants on trial"; and "it is generally accepted that absent agreement, 'courts and prosecutors generally are forbidden from mentioning that a co-defendant has either pled guilty or been convicted'." (Id., at 755). Nonetheless, the Court ruled that any error that occurred was harmless. After all, the Court reasoned, "when the pleas were admitted into evidence, the district court instructed the jury not to consider them as evidence against the defendants on trial."
Some years ago another not-so-naive court commented on the fairy-tale belief that curative instructions can effectively wipe from the jurors' minds the prejudicial impact of evidence that should never have been admitted in the first place. That court wrote: "[A]s this court observed in overturning a conviction because of improper prosecutorial comment, despite a corrective instruction, once such statements are made, the damage is hard to undo: 'Otherwise stated, one cannot unring a bell'; 'after the thrust of the saber it is difficult to say forget the wound'; and finally, 'if you throw a skunk into the jury box, you can't instruct the jury not to smell it'." United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979).
This en banc decision reverses an old Ninth Circuit decision, U.S. v. Brodie, 858 F.3d 492 (9th Cir. 1988), which held that Rule 704(b) of the Fed.R.Evid. precluded an expert witness from testifying to a predicate matter from which the jury might "extrapolate" whether the defendants possessed the necessary mens rea to commit the crime for which they were charged. While expert witnesses generally may testify as to their opinions on ultimate issues to be decided by the jury, Rule 704(b) makes a limited exception in criminal cases by stating that expert witnesses may not state an opinion as to whether the defendant did or did not have the mental state constituting an element of the crime.
The defendant in this case, a bookkeeper, was charged with making false entries in a union ledger, in violation of 29 U.S.C. § 439(c). She attempted to introduce expert testimony to show her lack of experience and training in, and understanding of, accounting principles. The lower court sustained the Government's objection to that testimony; and she was convicted. On appeal, the Ninth Circuit reversed. It held, first, that the reach of Rule 704(b) is not limited to psychiatrists and other mental health experts, as some circuits have suggested; and, second, that Rule 704(b) allows testimony supporting an inference or conclusion that the defendant did or did not have the requisite mens rea, "so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony." (Id., at 1038).
The defendant in this case, a ophthalmologist, was charged in a massive 217 count indictment with numerous counts of Medicare fraud, mail fraud and engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957. While his appeal covered many issues, the case is noted because of its extended analysis of § 1957 - a very scary statute.
The defendant received some $15 from Medicare alone in a five year period. The Government charged that, since his entire practice was a fraud (a contention ultimately rejected by the Court), it was unnecessary to trace the particular money-wire transactions that were covered in the indictment to specific illegal sources. In response, the court noted, "Section 1957 could apply to any transaction by a criminal with his bank. Two years after its enactment an amendment was necessary to provide that the term "monetary transaction" [did not include legal fees]. Without the amendment a drug dealer's check to his lawyer might have constituted a new federal felony. . . . This draconian law, so powerful by its elimination of criminal intent, freezes the proceeds of specific crimes out of the banking system. . . . A type of regulatory crime has been created where criminal intent is not an element. . . . Such a powerful instrument of criminal justice should not be expanded by judicial intervention or ingenuity." (Id., at 1062).
The court agreed that the money laundering statute, 18 U.S.C. § 1956, covered innocent funds that were commingled with funds derived from criminal activities; but it refused to apply the same standards to § 1957. "Unlike § 1956, § 1957 does not cover any funds 'involved'. To create such a presumption in order to sustain a conviction under § 1957 would be to multiply many times the power of that draconian law." (Id., at 1063). Thus, since the Government failed to prove that any fraudulently derived funds had been wired out of the defendant's bank accounts on the dates charged in the indictment, it ruled that the money transfer convictions had not been proved beyond a reasonable doubt and it reversed those convictions.
United States v. McVeigh, 954 F.Supp. 1441 (D.Colo. 1997) (Judge Matsch)
These two cases address another recurrent and fulminic issue: Does an indigent defendant really have the ability to compete fairly with the Government in obtaining funds needed to investigate cases, subpoena witnesses and hire expert testimony?
In theory, Rule 17(b) of the Fed.R.Crim.P. gives an indigent defendant the right to apply to the courts to defray the costs of subpoenaing witnesses "necessary to an adequate defense." In theory, Rule 706 of the Fed.R.Evid. gives an indigent defendant the right to apply to court for funds required to pay for expert witnesses. And, in theory, the provisions of the Criminal Justice Act (18 U.S.C. § 3006A) permit an indigent defendant to apply to the courts to obtain financial assistance for "investigative, expert, or other services necessary for adequate representation."
But the reality is that the Government, after having spent obscene amounts to prepare its own case, suddenly becomes niggardly and excessively parsimonious and nearly always objects to the payment of any such fees and expenses. It is also beyond dispute that the artificially low limits set forth in the CJA make a mockery of the concept of putting defense counsel on a parity with the Government and its ability to spend taxpayer monies lavishly. (See, e.g., 18 U.S.C. § 3006A(e)(3), which provides in part "Compensation to be paid to a person . . . under this subsection . . . shall not exceed $1,000 . . . unless payment in excess of that limit is certified by the court . . . as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit." And that is no mean feat!)
In any event, both of these cases deal with certain aspects of the problems faced by indigent defendants. In Viltrakis, the defendant appealed from an order of the district court which awarded a defense witness payment for his services as a defense witness and payment of subsistence fees only for three out of 20 days requested. The defendant subpoenaed a witness from Pennsylvania to attend a trial in Arizona. The witness arrived from Pennsylvania on December 15, finally testified on January 3, and was excused. The court agreed to pay witness fees (a munificent $40 per day) - but only for December 15, the day the witness arrived, January 2, the day before he testified, and January 3, the day on which he testified and was excused. The Government of course vigorously opposed the payment of anything more, presumably in the exercise of its self-appointed role as guardian of the U.S. Treasury. On appeal, the Ninth Circuit neatly ducked most of the significant underlying issues by ruling that the defendant did not have standing to sue on behalf of his witness. "A party must 'assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties'."
In the McVeigh case, perhaps because the eyes of the world are on that case, Judge Matsch took a more reasonable approach. He approved a broad motion authorizing the payment of fees for additional counsel, investigators, consultants and forensic specialists "together with attendant costs and expenses." Of particular importance was the scope and wording of Judge Matsch's order: "[T]he court has made no effort to evaluate the credibility or determine the significance of these submissions, and has consistently relied on the experience and integrity of defense counsel, accepting their representations that such resources are reasonable necessary in preparing for the trial defense of Mr. McVeigh. There is no requirement that defense counsel show that admissible evidence will result from these investigatory efforts." (Id., at 1445).
This "unprecedented" habeas corpus case takes the cake as a blatant example of coaching witnesses to achieve a conviction; but to understand what happened, one must read the descriptive dissenting opinion of Judge Noonan. The defendant was convicted to sexual assault of a four year old girl. Among the alleged errors were the trial court's refusal to allow the defendant to cross-examine the victim's mother about accusations of sexual abuse that the mother had previously made against her own father (i.e., the victim's grandfather) - who the defendant always claimed was the perpetrator of any sexual abuse that occurred. The principal error claimed was that the victim herself was incompetent to be a witness; that she was easily manipulatable; that her video-taped testimony was riddled with inconsistencies; and that being denied the right to cross-examine her after her video-taped testimony was presented to the jury denied him his rights under the Confrontation Clause.
A majority of the Ninth Circuit concluded that no Confrontation Clause violations had occurred. It reaching that conclusion, its opinion is filled with wonderful snippets of its view of justice - such as its statement that: "Incapacity to testify truthfully does not automatically offend the Condrontation Clause when the witness in question is a young child." (Id., at 1168).
Judge Noonan strongly disagreed. He set forth in his opinion a lengthy portion of the court's preliminary voir dire examination of the victim to determine if she was qualified to testify. The child first testified that she did not know the difference between truth and falsity. The lower court then brought in a psychologist to help - and help she did. Near the end of the examination that ensued, the trial judge gleefully exclaimed that it was "getting to the point where she [the victim] knows the difference between what is true and what is false. Yes, I think that is sufficient." (Id., at 1174).
After reviewing all the testimony, Judge Noonan concluded: "The judge and [the psychologist] have brought [the victim] to this point. They have educated her to give the responses they seek. She is now playing by their rules. The raw, uneducated answers she first gave . . . show her to have been incompetent. . . . As a matter of fact and as a matter of law she was not competent to be a witness. . . . When [such an] unprecedented event occurs that a child is presented as a major witness in a felony prosecution, and the record made by the trial court shows that she does not know what truth-telling is, we have the duty to determine whether the federal constitutional rights of the defendant have been violated. They have. He has been denied the right to confront the witness against him and to cross-examine." (Id., at 1174-75).
[Editor's Note:
This decision was modified and superseded by a later decision reported
at 122 F.3d 1207, and was discussed in Vol.
4, Issue 42.]
In a detailed and highly-technical decision, Judge Saris ruled in this case that DNA testing, using both the RFLP and the PCR methods of analysis, are sufficiently scientifically validated to be admitted as reliable evidence under the provisions of Rule 702 of the Fed.R.Evid. and under the standards laid down by the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
United States v. Bellomo, 954 F.Supp. 630 (S.D.N.Y. 1997) (Judge Kaplan)
This multi-issue, multi-defendant RICO case involved a potpourri of pretrial motions, from motions to suppress intercepted communications over cellular phones to multiple double jeopardy motions; but it is noted here as one of the few examples in which a court has granted a severance motion. Ever since the Supreme Court's decision in Zafiro v. U.S., 506 U.S. 534 (1993) severance motions have been granted rarely. As this decision notes, a defendant seeking severance under Rule 14 of the Fed.R.Crim.P. has the "extremely difficult burden" of proving not merely that he would be prejudiced by a joint trial, but that the prejudice would be so great as to deprive him of his right to a fair trial. (Id., at 649).