US v. Gobbi, 06-1643. The facts sound like something out of a modern gangster movie. Although convicted of distribution of cocaine, the defendant argues that there was insufficient evidence that he attempted to constructively possessed cocaine. The prosecution requested, and the jury was instructed on three theories: a standard attempt formulation, aiding and abetting, or Pinkerton liability. The First looks at the "aiding and abetting" theory and applies the facts, finding that the three elements exist:
(1) that the underlying offense was committed by a principal;
(2) that the defendant consciously shared the principal's knowledge; and
(3) that he willfully associated himself in some way with the crime and willfully participated in it as he would in something he wished to bring about.
United States v. Keene, 341 F.3d 78, 84 (1st Cir. 2003)
Character evidence (in the form of a conversation regarding "drug protection" rather than "drug purchase"). However, the First explains that the drug conspiracy was so broad that this evidence was simply relevant to a different part of the conspiracy. Likewise, it wasn't unduly prejudicial.
Then it starts getting disturbing. The First broadly declares that acquitted conduct can still be used to enhance sentences! Whoopee! Their analysis is disappointing, since it just refers to pre-Booker caselaw.
An enhancement for obstruction of justice (i.e. that the defendant was stupid enough to testify in contradiction to the government's evidence) is affirmed because the court conducted an independent review of the record, and that the standard is a preponderance of evidence