US v. Villar

Filing 920091110

Opinion

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var WPFootnote1 = 'Of the District of Massachusetts, sitting by designation.\
'

var WPFootnote2 = ' Joshua Gagnon and Dedra Scott, the Appellant’s co-conspirators, pleaded guilty to the charges prior to Appellant’s\
trial.\
'

var WPFootnote3 = ' Some of the details provided by these witnesses were\
corroborated by lay witnesses who saw the robbers and the getaway\
vehicle.\
'

var WPFootnote4 = ' On appeal he has recast the constitutional right as arising\
under the Fifth and Sixth Amendments as well.\
'

var WPFootnote5 = ' The Appellant asserts violations of both his due process\
rights and his Sixth Amendment rights to a fair and impartial jury. \
Courts that have dealt with the issue of possible racial and ethnic\
bias during jury deliberations have framed their discussions\
primarily in the context of the Sixth Amendment. See, e.g.,\
Tanner, 483 U.S. at 127 (“Petitioners\' Sixth Amendment interests in\
an unimpaired jury, on the other hand, are protected by several\
aspects of the trial process.”); Benally, 546 F.3d at 1240 (“We\
must remember that the Sixth Amendment embodies a right to a fair\
trial but not a perfect one, for there are no perfect trials.”). \
Other courts have considered a challenge to bias in juror\
deliberations as encompassing both due process and Sixth Amendment\
rights. See, e.g., Shillcutt, 827 F.2d at 1159. The parties do\
not distinguish between the two rights for purposes of the\
analysis.                         \
'

var WPFootnote6 = ' See McDonough, 464 U.S. at 558 (Brennan, J., concurring)\
(“Because the bias of a juror will rarely be admitted by the juror\
himself, ‘partly because the juror may have an interest in\
concealing his own bias and partly because the juror may be unaware\
of it,’ . . . it necessarily must be inferred from surrounding\
facts and circumstances.” (quoting Smith v. Phillips, 455 U.S. at\
221-22 (O’Connor, J., concurring))). As the trial judge in this\
case pointed out based on his many years of dealing with jury\
trials, many defense attorneys have sound tactical reasons for not\
proposing specific voir dire questions regarding racial or ethnic\
bias because it might be viewed as insulting to jurors or as\
raising an issue defense counsel does not want to highlight. As\
the government pointed out, voir dire using questions about race or\
ethnicity may not work to a defendant’s benefit where one of the\
robbers was described as Hispanic.\
'

var WPFootnote7 = ' “[C]ommentary in the Guidelines Manual that interprets or\
explains a guideline is authoritative unless it violates the\
Constitution or a federal statute, or is inconsistent with, or a\
plainly erroneous reading of, that guideline.” Stinson v. United\
States, 508 U.S. 36, 38 (1993).\
'

var WPFootnote8 = ' Prior to November 1, 2000, the Guidelines provided that\
“brandished” meant that the weapon was “pointed or waved about, or\
displayed in a threatening manner.” U.S.S.G. § 1B1.1 cmt. n.1(C)\
(1999) (amended Nov. 1, 2000). Under that definition, some courts\
drew a distinction between explicit and implicit threats\
accompanying the display of a weapon in order to distinguish\
between “brandish[ing]” and “otherwise us[ing].” See, e.g., United\
States v. Moerman, 233 F.3d 379, 380-81 (6th Cir. 2000) (holding\
that “pointing the firearm in a threatening manner” without the use\
of verbal threats was “brandish[ing]” of a weapon). The majority\
of circuits that have analyzed this issue under the amended\
definition have noted that the explicit/implicit distinction is no\
longer useful. Since the amended definition, courts have instead\
focused on the “specific” as opposed to “general” use of the weapon\
in determining which enhancement is appropriate. See generally\
United States v. Dunigan, 555 F.3d 501, 505 (5th Cir. 2009)\
(holding that “otherwise use[]” requires that “[t]he threat to the\
victim must be specific rather than general”); United States v.\
Paine, 407 F.3d 958, 963-64 (8th Cir. 2005) (concluding that\
defendant “otherwise used” a weapon when he “employed the gun to\
convey a threat directed at [a] specific teller which was intended\
to intimidate her into complying with his demands”); United States\
v. Orr, 312 F.3d 141, 145 (3d Cir. 2002) (“Neither the guidelines\
nor the caselaw requires . . . a verbalized threat to harm the\
victim in order to constitute ‘otherwise used’”).\
'

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