Eleventh Circuit Court of Appeals - Published Opinions

Friday, August 28, 2015

Zelaya: 2241 relief not avalaible in the circumstances

In Zelaya v. Sec., Fla. Dept. of Corrections, No. 12-16462 (Aug. 24, 2015), the Court held that a district court committed no error in deciding not to recharacterize Zelaya’s habeas petition under 28 U.S.C. § 2241 as a § 2255 motion. The Court noted that Zelaya made a strategic choice to file a petition under § 2241, and the district court was not obliged to consider the costs and benefits of the alternative approach. The Court ruled that Zelaya’s § 2241 petition was not cognizable under the savings clause of § 2255(e) because his claim, namely that his illegal reentry conviction was pursuant to an unlawful deportation order, was never foreclosed by Circuit precedent. Zelaya’s claim that he was actually innocent did not entitle him to proceed under § 2241 instead of § 2255. The Court remanded the case to the district court, with instructions to dismiss his petition without prejudice.

Thursday, August 27, 2015

Feaster: VA Theft is Felony not Misdemeanor

In U.S. v. Feaster, No. 14-13978 (Aug. 25, 2015), the Court rejected the defendant’s argument that her convictions for theft under 18 U.S.C. § 641 should have been misdemeanors, not felonies. The Court noted that under the statute, a punishment of less than one year only applies if the aggregate amount of all counts of conviction did not exceed $1,000. The fact that one count of conviction was for less than $1,000 does not entitled a defendant to have a conviction become a misdemeanor. The Court also rejected Feaster’s challenge to the “sophisticated means” sentence enhancement. The Court noted the totality of the scheme, including the two years for which the conduct was not detected. Feaster used her inside information and her position at the Veterans Administration to perpetrate the fraud. She prepared a fraudulent purchase order to obtain approval to use a government authorized Purchase Card. She obscured her personal purchases by using the Purchase Card. She made fictitious entries in the VA’s system to reconcile the original purchase order with the amount of money she had charged on the Purchase Card.

Hill: Resisting an officer with violence qualifies under ACCA elements clause

In U.S. v. Hill, No. 14-12294 (Aug. 26, 2015), the Court, affirming a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), found no error in a district court’s denial of a defendant’s request to add the word “knowingly” to its jury instruction on “constructive possession.” The Court found that the district court’s instruction impliedly required that Hill knowingly possess the firearm. On a cross-appeal by the government of the district court’s finding that two prior convictions did not qualify as “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), the Court agreed with Hill that this argument was foreclosed in light of the Supreme Court’s recent Johnson decision. However, the Court (sua sponte: the government did not raise this point on cross-appeal) found that one prior conviction, for resisting an officer with violence, in violation of Fla. Stat. § 843.01, qualified under ACCA’s elements clause. The Court therefore remanded the case for the district court to consider whether the prior Fla. Stat. § 843.01 conviction, coupled with two prior drug offenses, might qualify Hill for a sentence under ACCA.

Friday, August 21, 2015

Maiello: Delay of Amendment 782 to November 2015 is valid

In U.S. v. Maiello, No. 15-10532 (Aug. 19, 2015), the Court held that a drug offender subject to an Amendment 782 sentence reduction was not eligible to immediately benefit from the reduction because of the Sentencing Commission’s decision to delay any release until November 2015. The Court rejected the argument that the Sentencing Commission improperly considered offenders’ rehabilitation in its delay decision, in violation of Tapia v. U.S. The Court noted that Tapia applied to a decision to impose a sentence, not to a decision to reduce a sentence under 18 U.S.C. § 3582(c). The Court also rejected the argument that the Commission’s delay decision violated the Administrative Procedure Act, pointing out that policy statements of the Commission are not subject to the APA. The Court also found that the Commission’s decision was reasonable, not arbitrary and capricious. Finally, the Court rejected the argument that the Commission’s delay decision encroached on the judicial power. The Court noted that Congress delegated to the Sentencing Commission the power to specify the circumstances under which sentences may be reduced.

Tuesday, August 18, 2015

Sperrazza: Structuring need not involve a "cash hoard"

In U.S. v. Sperrazza, No. 14-11972 (Aug. 17, 2015), the Court affirmed convictions of tax evasion and structuring currency transactions, and a forfeiture order of $870,238.99 on a Georgia physician. The Court (2-1) rejected the argument that a “structuring” violation must involve a defendant who has more than $10,000 on hand (a “cash hoard”). The Court explained that a person who has $9,000 on hand, and knows more cash is on the way, and deposits the $9,000 to evade the $10,000 reporting requirement can be guilty of “structuring.” The Court also rejected Sperrazza’s claim that the $870,238.99 forfeiture violated the Excessive Fines Clause of the Eighth Amendment. The Court noted that under the statute the defendant was subject to a fine of up to $500,000. The Court also rejected the argument that the forfeiture was excessive because Sperrazza earned the money lawfully. The Court pointed out that the structuring “decreased the likelihood the IRS would detect the underlying tax evasion.”

Tuesday, August 04, 2015

Willner: Deliberate Ignorance Instruction Proper

In U.S. v. Willner, No. 12-15322 (Aug. 3, 2015), the Court reversed a medicare fraud conspiracy conviction for insufficient evidence, but otherwise affirmed convictions arising out of a scheme that submitted in excess of $200 million in fraudulent claims. As to one convicted co-conspirator, the Court noted the absence of any direct evidence of her participation in the conspiracy, and rejected as too weak the inferences the government attempted to draw from circumstantial evidence. The Court rejected other defendants’ argument that they should have been a theory-of-defense instruction based on Florida law, finding that this law did not have influenced the jury based on the way the government presented its case. Joining the majority of circuits to have considered the issue, the Court held that it was proper to give a jury a deliberate ignorance instruction with regard to whether a defendant knew the unlawful purpose of a conspiracy, without giving this instruction to whether the defendant willfully joined in the conspiracy. The Court found that the district court abused its discretion when it allowed a government witness to give opinion testimony, and when it not allowing the defense to cross-examine this witness about the basis for his opinions. However, the error was harmless in light of the overwhelming evidence of guilt.

Thursday, July 23, 2015

Puentes-Hurtado: Claims reviewable on appeal despite appeal waiver

In U.S. v. Puentes-Hurtado, No. 13-12770 (July 22, 2015), the Court held that an appeal waiver in a plea agreement did not bar a subsequent appeal on a claim that the plea was involuntary because counsel rendered ineffective assistance, because the government breached the plea agreement, nor on a claim that there was an insufficient factual basis to support the plea – such a claim goes to whether the guilty plea is enforceable. The Court declined to reach the ineffective assistance of counsel claim, finding the record insufficiently developed, and noting that the defendant could file a motion to vacate under 28 U.S.C. § 2255. Reviewing the issue for “plain error,” the Court found that even if the defendant only admitted to physically transporting the drug proceeds, this sufficed to support his guilty plea for a narcotics distribution conspiracy. Again reviewing for “plain error,” the Court found that even if the government breached the plea agreement by presenting drug quantity evidence that supported a higher sentence, the district court would have imposed the same sentence even based on a lower drug quantity. The defendant failed to establish a reasonable probability that the district court would have imposed a lower sentence.

Khan: Defense ran the risk that video conferencing witnesses would fail

In U.S. v. Khan, No. 13-14048 (July 23, 2015), the Court affirmed convictions for providing material aid to terrorists. The Court rejected the challenge to a translator’s use of bracketed words to explain the meaning of intercepted telephone conversations. The Court found that the bracketed words appropriately transported “living thoughts” from one language to another. The Court also rejected challenges to rulings made during the testimony of the government’s case agent. The Court found that any error in admitting as expert testimony the case agent’s non-expert testimony about the meaning of words used in conversations was harmless, in light of other testimony on the same topic. Though acknowledging that prosecutors should not permit investigators to give “overview testimony” about the results of a criminal investigation, the Court found that the case agent testified based on his personal knowledge of recorded conversations. The Court found no error in the limitation of cross-examination about a government informant, finding that the topics were irrelevant, or merely aimed to bolster the defendant’s credibility, not to undermine a witness’s credibility. The Court found no error in not allowing the defense to cross-examine the case agent about a Pakistani police report that purportedly exonerated Khan. The report was not in evidence, and offered no conclusions, but simply relayed hearsay statements. During the trial, the video-conference testimony of defense witnesses from Pakistan ceased when internet connection failed, most likely as the result of Pakistan police interference. The district court denied a defense request for a continuance to obtain the testimony. The Court found that the defense elected to run the risk that, in failing to obtain Pakistan government approval for the depositions, the depositions would be shut down. Moreover, it was undetermined how long it would take to re-establish internet connection.

Wednesday, July 22, 2015

Hamilton: Appeal of Denial of 60(b) motion requires COA

In Hamilton v. Sec., Fla. Dep’t of Corrections, No. 14-13535 (July 15, 2015), the Court held that a habeas petitioner who appeals the denial of Rule 60(b) motion is required, like a petitioner who appeals the denial of habeas relief under 28 U.S.C. § 2255, to obtain a Certificate of Appealability (“COA”) in order for the Court of Appeals to consider the appeal. The Court rejected Hamilton's argument that intervening Supreme Court cases called into question the Circuit precedent that required a COA in order for a habeas petitioner to appeal the denial of a Rule 60(b) motion – and the denial of a Rule 59(e) motion. Turning to whether Hamilton, a death row inmate, was entitled to COA, the Court held that he was not, finding his arguments “squarely foreclosed” by Circuit precedent.