Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, March 04, 2015

Melton: Youthful death penalty issues not "debatable"

In Melton v. Sec., Fla. Dep’t of Corrections, No. 13-12967 (March 3, 2015) (2-1) (Martin, J., dissenting), the Court denied a motion for a certificate of appealability, finding the issues not “debatable.” Melton claimed that his prior conviction for a murder committed when he was under 18 years of age should not have been used as an aggravating factor for imposition of the death penalty. The Court noted that no Supreme Court precedent suggested that this might be the law, and the Florida Supreme Court’s rejection of this argument therefore did not violate “clearly established Federal law.” The Court also found no debatable issue in the claim that, even though Melton was over the age of 18 when he committed his capital offense, some of the factors of youth were still present, and should have been considered as mitigating factors.

Monday, March 02, 2015

Hernandez: Padilla applies even if after guilty plea

In Hernandez v. U.S., No. 13-10352 (March 2, 2015), the Court held that the district court abused its discretion in denying an evidentiary hearing to a defendant who claimed that he received ineffective assistance of counsel when she incorrectly advised him about the immigration consequences of pleading guilty to marihuana trafficking. The district court held that Padilla v. Kentucky, which held that counsel must inform her client whether his plea carries a risk of deportation, did not apply because the case was decided after Hernandez enter his plea. Reversing, the Court explained that the question was not whether defense counsel failed to raise an argument which later would prove meritorious, but whether counsel performed deficiently when she mis-advised Hernandez about the consequences of his guilty plea. Moreover, Hernandez alleged that he would have chosen to risk longer incarceration for the chance to avoid deportation. These facts, if true, would have proven that counsel performed deficiently, and prejudice. Hernandez was therefore entitled to an evidentiary hearing.

Everett: Request for DNA Sample is not "Interrogation"

In Everett v. Sec., Fla Dep’t of Corrections, No. 14-11857 (Feb. 27, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 2001 murder. The Court rejected the argument that the police violated Everett’s Fifth Amendment right to silence when, after he requested a lawyer, the police request his consent to obtain DNA samples. The Court noted that the right to silence merely requires the police to cease “interrogation.” The Court held that the Florida Supreme Court reasonably concluded that the request for DNA consent did not amount to “interrogation,” noting that this request is not reasonably likely to elicit an incriminating verbal response.

Thursday, February 26, 2015

Bailey: Child Pornography Possession Indictment Sufficient

In U.S. v. Bailey, No. 14-10174 (Feb. 24, 2015), the Court rejected a challenge to the clarity of an indictment that charged sexual exploitation of a child, and possession of child pornography. Noting that challenges to the sufficiency of an indictment are reviewed only for “actual prejudice,” when raised, as here, for the first time on appeal, the Court pointed out that Bailey knew precisely which of four video images were charged in the first four counts of the indictment. The Court also rejected a challenge to a count of the indictment that failed to identify the pornographic image at issue. The Court noted that the indictment identified the computer and videotapes on which he had child pornography. Thus, Bailey had “ample notice” of the images. The Court also rejected the argument that a violation of 18 U.S.C. § 2251(a) requires that a minor actually masturbate in the visual depiction, pointing out that this statute merely requires that the defendant “induce” or “entice” the minor; “it does not require the effort to be successful.”

Monday, February 23, 2015

Kopp: Venue for failing to register as sex offender also lies in state where travel began

In U.S. v. Kopp, No. 14-12408 (Feb. 18, 2015), the Court affirmed (1) the denial of a motion to dismiss an indictment for improper venue, and (2) the sentence imposed following the revocation of supervised release. Kopp moved from Georgia to Florida, where he failed to register as a sex offender. He was convicted of this offense in Georgia, where he preserved the argument that venue should have been in Florida, not in Georgia. Rejecting this argument, the Court pointed out that venue for this offense could be in “any district” where the crime was “begun, continued, or completed.” Here, Kopp began his crime in Georgia, because his interstate journey started there. The Court also affirmed the imposition of a six-month upward variance on Kopp’s sentence for subsequently violating his supervised release, pointing to Kopp’s “long and violent history of crime.”

Friday, February 20, 2015

Roberts: Affirming Convictions and Sentences in Medicare Fraud

In U.S. v. Roberts, No. 12-16056 (Feb. 17, 2015), the Court affirmed convictions and sentences arising out of a multi-million dollar Medicare fraud that involved using chronic substance abusers, elderly patients with dementia, Haitian patients seeking immigration benefits, and paid patients to obtain payments from Medicare for purported mental health services. The Court rejected a number of challenges to the convictions, including the argument that the prosecutor’s allusion in closing argument to the possibility that defense counsel were aware of their clients’ guilt. The Court noted that the district court sustained an objection to this statement and gave a curative instruction. Turning to sentencing, the Court affirmed the imposition of the “mass marketing” two-level sentence enhancement of U.S.S.G. § 2B1.1(b)(2)(A)(ii). The Court noted that recruiters repeatedly targeted new patient populations to bring them to their fraudulent clinic for treatment. The Court also affirmed the imposition of the “conscious or reckless risk of death or serious bodily injury” under U.S.S.G. § 2B1.1(b)(13)(A). The Court noted that the clinic admitted elderly patients with dementia even though the clinic was not equipped to meet these patients’ needs. The Court further affirmed the imposition of the “vulnerable victim” enhancement under U.S.S.G. § 3A1.1(b)(1). The Court noted that the victims included elderly patients and substance abusers, who were vulnerable because of their need for treatment. The Court affirmed the imposition of an upward variance based on the district court’s finding that one defendant’s criminal history of I understated the seriousness of his criminal history. Finally, the Court rejected a challenge to the $9 million restitution award, affirming the district court’s finding that the clinic did not render any proper services to Medicare that could offset the restitution amount.

Tuesday, February 17, 2015

Holt: Single conspiracy had a "common goal"

In U.S. v. Holt, No. 13-10453 (Jan. 30, 2015), the Court affirmed convictions and sentences of defendants charged with conspiracy to distribute oxycodone and cocaine. The Court rejected the defendants’ argument that evidence should be suppressed based on an unreasonable length of time elapsed between traffic stops and the deployment of drug dogs, finding that 27 minutes for one stop and only a few minutes for another was not unreasonable. The Court also found that the police had reasonable, articulable suspicions that Hold was engaged in drug trafficking. The Court rejected the argument that the trial court’s admission in evidence of pre-indictment narcotics distribution was a “constructive amendment” of the indictment. The Court noted that this evidence helped explain why one defendant helped the others distribute drugs, and not broaden the possible bases for conviction. The Court also rejected the argument that the government proved multiple conspiracies, not a single conspiracy, finding that the defendants “operated toward a common goal to distribute cocaine and oxycodone in South Florida and Boston," and involved “a significant overlap of participants.” The Court further noted that the defendants did not demonstrate “substantial prejudice” from any variance, as evidenced by the fact that the jury returned different verdicts as to different defendants. The Court found no error in the district court’s admission of expert testimony by a DEA agent regarding the meanings of coded language used by the defendants in intercepted communications. The Court noted that the testimony helped thejury interpret the meaning of words “more accurately than a lay person.” The Court found no abuse of discretion in the trial court’s denial of a mid-trial motion for a recess to prepare to testify and obtain witnesses. The trial had been going on for weeks, and the defendant had received multiple warnings to be ready to present her case. Further, the defendant had shown a lack of diligence in failing to subpoena witnesses.

Friday, February 13, 2015

Duperval: Affirming Foreign Corrupt Practices Act Conviction and 108 month sentence

In U.S. v. Duperval, No. 12-13009 (Feb. 9, 2015), the Court affirmed convictions and a 108-month sentence on a defendant convicted of receiving bribes in exchange for favors from his Haiti telecommunications company, Teleco. The Court found no abuse of discretion in the district court’s refusal to interview jurors individually about mid-trial publicity. The Court noted that the district court took actions to ensure the jurors were not exposed to publicity. The Court recognized that it would have been “preferable” to question a specific juror individually after she submitted a note about her awareness of corruption in Haiti, but this was not an abuse of discretion because the earlier media coverage was not related to the case. The Court rejected the argument that Teleco was not an “instrumentality” for purposes of the Foreign Corrupt Practices Act, pointing out that the government granted Teleco a monopoly over telecommunication services. The Court also rejected the argument that the jury should have been instructed to consider whether Duperval was merely performing a “routine governmental function,” noting that he was administering multi-million dollar contracts, which is not “routine.” The Court rejected the argument that the government interfered with a witness when it obtained a second declaration from this witness, finding that this witness merely “clarified” his earlier declaration. Turning to sentencing, the district court rejected the challenge to the application a two-level enhancement for a substantial part of a fraudulent scheme being committed from outside the United States. The Court noted that the relevant conduct for this offense related not to the money laundering that occurred only in the United States, but to the “underlying offense” of wire fraud. The Court further rejected the challenge to the “manager” enhancement, pointing out that Duperval managed another participant, and that there were five or more participants in the scheme. The Court rejected the challenge to the “obstruction of justice” enhancement, finding that Duperval “perjured himself” when he testified at trial. Finally, the Court found that the 108-month sentence was “substantively reasonable,” finding Duperval’s comparisons to other defendants to be “inapt.”