Mimesis Law
22 August 2019

Last Week In Review

Apr. 27, 2016 (Mimesis Law) — Monday, April 18, 2016

Prepare for jury trial tomorrow-an interdiction stop on I-80 with the car heading west probably back to California from whence it came. The driver of a rental vehicle entered a guilty plea. A kilo of meth was hidden in a cut-out of the frame rail under the passenger seat and that forms the basis for the charge. The frame rail cut-out is covered over with Bondo® and blue paint that doesn’t match the car.

Passenger wants a trial, although signs point toward the fellow being the “man.”  A receipt for the Bondo® purchase is found on the passenger seat, but the Sherwin Williams store doesn’t have cameras in the store so Patrol Sergeant can’t establish that the defendant actually bought it. Driver won’t cooperate—maybe too scared. Somebody probably got the meth in Grand Island, Nebraska, where there are huge packing plants and where Hispanics like these guys work the kill floor. The dope comes from the big labs south of the border. The drugs in bulk quantities make it to GI via poor schmucks offered deals they can’t refuse.

Meet with law clerks and pro se staff attorney for weekly luncheon meeting–lots of laughing.

Tuesday, April 19, 2016.

Early morning call from defense lawyer’s paralegal. Counsel is in the hospital after being taken there with chest pain. He is a very good and very experienced lawyer and the lawyer has had prior experience with stents. Paralegal says the defense lawyer is likely to get out today if he passes stress test. If so, lawyer wants to start on Wednesday. I say, “Let me know by 2:00 PM.”  I orient the jury and tell them to come back in the morning. Paralegal calls back and tells me the lawyer is out and is ready to go.

Wednesday, April 20, 2016.

Joan’s (my wife) birthday is today. The defense lawyer is late to the Frye hearing before the Magistrate Judge. Says he hasn’t heard of such thing—he’s old like me. Magistrate Judge Zwart patiently walks everyone through it to make sure defendant knows he is turning down a written plea offer that’s pretty good. With his prior felony conviction, the defendant may be looking at 210 months if he goes to trial. We start jury selection late. I am moderately pissed off.

Trial starts, and government presents what little evidence it has through the road Trooper (man, does he look like a road Trooper, tall, lean, nearly a “skin head”).  Patrol Sergeant testifies—he’s with the task force.  He’s a good guy, and I’ve seen him testify before. He is a complete straight arrow. The government is angered when I keep out the drug dog evidence. The canine found and hit on all the money located on the passenger and the driver of the car when the money was hidden in the State Patrol’s office. I conclude all the money in circulation smells like dope, so what the hell does the dog sniff prove?  Cover my ass by citing Rule 403—the last refuge of scoundrels.

Go home. Eat the cake that Joan bought for herself. Did I get her a gift? Hell no!

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Chyna, who rose to fame as a female wrestler and actress (adult films and otherwise), died at 45. She was found dead Wednesday in her Redondo Beach home. See LA Times.

Thursday, April 21, 2016

Fletcher, our grandson in Australia, turns 5 today. Joan mailed birthday gifts in time for his birthday—hope they arrive.

Trial continues.  The defendant takes the stand. He weeps. His wife and four little kids are in the cheap seats. The kids are darling, particularly the little girl in her frilly dress. The children are well-behaved. The defendant’s family drove out from California to attend trial.

The defendant admits to prior drug felony, but knows nothing about the meth in the frame rail. The government has little to contradict him save for stuff like the Bondo® receipt and the fact that the car smelled of Bondo® and “burner” phones. Young prosecutor, a Special Assistant United States Attorney (a local prosecutor cross-designated to handle cases in federal court) beats up on the guy real good. The young prosecutor is learning. I like him a lot. He is another straight arrow.

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Prince dies. World goes purple. See LA Times.

Friday, April 22, 2016

I give the jury instructions. The lawyers argue. Defense lawyer does a fabulous job. Prosecutor does all he can, but he has an uphill path. The jury acquits the defendant in less than 2 hours. When the verdict is announced, his four kids rush to hug their father. The US Marshals gently control the situation. The defendant is crying. He is free to go, I say. No rainbow appears over Lincoln.

Richard G. Kopf
Senior United States District Judge (Nebraska)

9 Comments on this post.

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  • Chris
    27 April 2016 at 3:35 pm - Reply

    Tell the prosecutor not to worry about the verdict, you would have directed an acquittal anyway.

  • Richard G. Kopf
    27 April 2016 at 5:20 pm - Reply

    Chris,

    Granting an acquittal post-verdict under Rule 29(c) of the Federal Rules of Criminal is probably unconstitutional. Well, maybe just in bad form. At the very least, too depressing to consider.

    All the best.

    Rich Kopf

  • Anonymous
    27 April 2016 at 6:58 pm - Reply
    • Richard G. Kopf
      29 April 2016 at 8:06 am - Reply

      Anon.,

      Your video depicts a rainbow over Lincoln on June 22, 2007, and not April 22, 2016.

      Back then, I ordered that rainbow to celebrate an important historical event. On June 22, 1870, the US Congress created the United States Department of Justice. That historical event thereby provided the raison d’être for federal criminal defense lawyers who try to fool old fools like me. You should be ashamed of yourself.

      All the best.

      Rich

  • Purple Butterflies
    30 April 2016 at 9:47 pm - Reply

    What a great story. Loved the defense attorney. That defense lawyer earned his retainer or his CJA payment!!! The Special AUSA — no tears for him, there will be other cases.

  • Law student not a lawyer
    6 May 2016 at 4:30 pm - Reply

    Judge,

    Well, so you got reversed for handing a sentence a bit too long (awfully long) to a meth dealer/adict (your other entry on this wonderful reader friendly site). So be it, you still have something to hang your hat on…

    Specifically (but first a word of caution):

    I wouldn’t post anything but a “no comment” in response to my post, but remember last year all the fuss by Kerr and others about the comment about Cruz? Well, the next week in review should include a little laughter. Apparently the voters agreed — they prefer Trump over Cruz. (Perhaps a little karma for the loud mouths too.) Again, a no comment would be best for you, because I darn sure miss reading your blog and I would hate to lose you here on this site.

    PS. If you get to sentence that meth dealer/adict again, please include watching the whole series of Breaking Bad as a part of the special conditions. Meth dealing and addiction don’t end up well. It would balance out the probably second round of sentencing, which will equally be harsh (but perhaps a little less so).

    • Richard G. Kopf
      7 May 2016 at 9:08 am - Reply
      • Anonymous
        7 May 2016 at 12:22 pm - Reply

        Someone in Texas was going to make him a judge? Thank god he went to the Senate. One of one hundred makes it a heck of a lot less likely that he could hurt anyone. I’ve read some of his briefs. No doubt he’s smart, but I don’t think he’ has wisdom. Don’t you need that to be a judge?

        • Richard G. Kopf
          8 May 2016 at 7:40 am - Reply

          Anon.,

          What a simple yet profound question you ask. That is: Don’t you need wisdom to be a judge?

          Wisdom is a rare commodity in people whether they be judges, teachers or candlestick makers. In my opinion, you don’t need to be a wise person to be a good judge, but you must never be an idealogue and sit as a judge.

          Attention to your craft and intellectual honesty will make a good judge. The master craftsmen, who invariably cut square corners and who are also wise become the great judges.Those are rare birds.

          All the best.

          RGK