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The Cowardly Counsel Exception

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Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.
Ms. Rodriguez ripped off you and me for 3 megabucks in Medicare fraud.  In accordance with a plea agreement, she was sentenced to 7 1/2 years.  The claim has to do with a passing comment by the judge about her coming to the country seeking refuge and then ripping us off.  Thanks to How Appealing for the pointer.

The Second Circuit cases are United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Kaba, 480 F.3d 152 (2d Cir. 2007).

The question of whether there is a heartless tin man exception is not presented by the facts of Rodriguez and will have to be resolved in a later case.

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