The New Federalism: Court Bails Out State

In Day v. Crosby, No. 04-10778 (Nov. 29, 2004), the Court (Tjoflat, Dubina, Pryor) held that a district court is authorized sua sponte to dismiss a habeas petition under the AEDPA statute of limitations, even though the State (erroneously) conceded in its answer that the petition was timely. The Court recognized that in ordinary civil cases, a statute of limitations defense is waivable, but pointed out that habeas cases are governed by the Rules Governing § 2254 cases, and these rules specifically authorize district courts to order summary dismissals. The Court noted the federal court’s "obligation" to enforce the AEDPA statute of limitations. The Court noted a conflict with other circuits which have held that a court does not have authority to sua sponte "cure" a party’s waiver.

The Value of a Plea Agreement

In U.S. v. Cesal, No. 03-15090 (Nov. 23, 2004), the Court (Carnes, Hull, and Wilson) affirmed the conviction and life sentence for a charge of conspiracy to distribute marijuana. The Court rejected several claims of error regarding Mr. Cesal's guilty plea and his request to proceed pro se. And the Court ruled that Mr. Cesal had waived his right to appeal his life sentence.
The Court relied on the written plea agreement entered into by Mr. Cesal and the government that was negotiated on the day of trial while the jury that had been selected but not sworn waited outside the courtroom. On the eve of trial, Mr. Cesal's co-defendant had negotiated a plea agreement with the government. In the plea agreement, Mr. Cesal consented to plead guilty to one count of conspiracy to distribute marijuana, to waive his right to appeal his sentence, and to cooperate with the government. The government agreed to hold Mr. Cesal accountable for only 1000 to 3000 kilograms of marijuana. The agreement also stated that if Mr. Cesal failed to fulfill his obligations, the government could recommend any sentence it deemed appropriate. Mr. Cesal entered his plea of guilty immediately and was then debriefed by government agents. A few days later, Mr. Cesal sought to withdraw his plea based on his disagreement with the facts as set out by the government and ineffective assistance of counsel.
In affirming the conviction, the Court noted that the plea colloquy, held right after the agreement was hammered out, did not go smoothly with Mr. Cesal expressing some pressure to plead guilty based on the higher sentence he faced if he went to trial and disagreeing with some of the facts in the government's factual proffer. But the Court held that the district court had addressed the core concerns of Rule 11 by ensuring that the plea was voluntary, that Mr. Cesal understood the nature of the charges and he understood the consequences of his guilty plea. The Court also found no abuse of discretion in the denial of a motion to withdraw the guilty plea noting the sufficient time spent on negotiating the agreement, the assistance of counsel, and the fact that the court was poised to begin the trial with a jury waiting when the plea was accepted. The Court further ruled that the government did not breach the plea agreement when it argued that Mr. Cesal should be held responsible for more than10,000 kilograms of marijuana, as he admitted in his debriefing, instead of the limit of 1000 to 3000 kilograms noted in the plea agreement. The Court agreed with the government that Mr. Cesal's request to withdraw his plea and his testimony at a hearing on that issue constituted a breach of the agreement which then allowed the government to argue for whatever punishment it deemed appropriate.
The Court also upheld the denial of Mr. Cesal's request to proceed pro se noting his vacillation on that issue before the district court. Finally, the Court upheld the appellate waiver contained in the plea agreement in which Mr. Cesal expressly agreed to waive his right to appeal his sentence, and, thus dismissed that portion of the appeal. [Summary by Tim Cone]

Confrontation in the Digital Age

U.S. v. Yates, No. 02-13654 (Nov. 24, 2004) . The Eleventh Circuit vacated fraud and money laundering convictions based on a violation of the Sixth Amendment's Confrontation Clause. At trial, the government was allowed to introduce, over defense objection, the testimony of two key witnesses via two-way videoconferencing from Australia. The witnesses, who were beyond subpoena power, were willing to testify but not to travel to Alabama to do so. The Court first held that it would apply the two-part test announced in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990), to determine whether a Sixth Amendment violation had occurred. In Craig, a case dealing with a rule that allowed a child victim of abuse to testify via a one-way closed-circuit video, the Supreme Court held that absence of a physical, face-to-face confrontation does not violate the Sixth Amendment "where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S. Ct. at 3166. The application of the Craig standard is important because in applying Craig, the Eleventh Circuit declined to follow the lead of the Second Circuit which had approved the use of two-way, closed-circuit television to present witness testimony from an undisclosed location outside the courtroom. See United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). In Gigante, the Second Circuit reasoned that the Craig standard only applied in the case of a one-way, closed-circuit transmittal where the witness could not see the defendant. Id. at 81. In contrast, the Eleventh Circuit held that the Craig standard applied anytime that the government sought to deny the defendant a physical, face-to-face confrontation with a witness. Applying Craig and reversing, the Court rejected the government's contention, which had been accepted by the district court, that the testimony served the "important public policy of providing the fact-finder with crucial evidence." Specifically, the Court held that "the prosecutor's need for the testimony in order to make a case and expeditiously resolve it are not public policies that are important enough to outweigh a defendant's right to confront an accuser face-to-face."

Certiorari Granted in Dodd v. U.S.

The Supreme Court today granted certiorari in Dodd v. U.S., No. 04-5286, 2004 WL 2073304 (U.S. Nov. 29, 2004), to resolve the circuit conflict over the starting point for the one-year AEDPA statute of limitations as to newly-recognized rights. In Dodd v. U.S., the Eleventh Circuit held that 28 U.S.C. § 2255(3)’s one-year limit for filing a § 2255 motion seeking relief based on a right newly recognized by the Supreme Court and made retroactive for collateral relief, begins to run from the date the Supreme Court recognizes the new right and not from the date that a court of appeals (or district court) finds the newly-recognized right to be retroactive. Thus, as the Court explained, as soon as the Supreme Court newly announces a right, all prisoners who could obtain relief from violation of that right – if it were made retroactive – should proceed to file for relief, on the hope that the right will later be seen to be retroactive. Such prisoners cannot simply await a decision on retroactivity before filing a 28 U.S.C. § 2255 motion. Here, the movant sought relief under the holding in Richardson v. U.S., 526 U.S. 813 (1999), that a CCE verdict requires jury unanimity on the constituent CCE violations. Although the Eleventh Circuit did not recognize Richardson as having retroactive effect until 2002 (several months after Dodd filed his § 2255 motion), that retroactivity decision was irrelevant to the running of the one-year time period (which period jump-started Dodd’s eligibility to seek § 2255 relief, his conviction having become final several years before the Richardson decision).
[NOTE: Petitioner Dodd is represented by our office's appellate division; the petition was filed by AFPD Janice Bergmann.]

Not Much of a Friend

Many thought that the pending Supreme Court case of Shepard v. U.S. -- raising the permissible means by which a sentencing judge may determine if an Armed Career Criminal Act predicate offense exists -- was a vehicle for the Court to recede from its earlier decision in Almendarez-Torres. An amicus brief was even filed on the issue by NACDL. At oral argument, a justice tried to move the discussion in that direction, but counsel for Shepard short-circuited that possibility:

JUSTICE O'CONNOR: Do you join the amici in saying Almendarez-Torres has to be overruled?

MS. THOMPSON: No, I do not.

JUSTICE O'CONNOR: No.

MS. THOMPSON: I do not join . . .

Transcript of OA at 13. That ended all mention of the continuing viability of Almendarez-Torres . . .

Should Have Sold Them on eBay

In U.S. v. Williams, No. 03-15395 (Nov. 16, 2004), on a government appeal, the Court (Edmondson, Fay, Corrigan b.d.) reversed a district court's order granting a Rule 29 judgment of acquittal after a jury returned a guilty verdict against a defendant charged with one count of bank fraud. The bank fraud conviction arose out of the defendant's unsuccessful attempt, along with her daughter, to get a bank to issue her a cashier's check on the basis of a (false) representation that a wire transfer would soon be coming into her account as payment for two rare signed baseballs she sold. On appeal, the government argued that the district court erred in relying on the defendant's testimony at trial that her daughter was orchestrating the scheme and that she knew nothing. The Court agreed, noting that the evidence, after a guilty verdict, must be viewed in the light most favorable to the government. The government's evidence showed that Williams was aware of lies about the forthcoming wire transfer, and about the sale of rare baseballs, and was attempting to get money from the bank, or aiding and abetting such a scheme. The Court noted that the district court's contrary finding was based on the defendant's testimony. However, the jury was free to reject that testimony, and could in fact convict the defendant in part because they disbelieved it.

Home & Garden

In U.S. v. Pineiro, No. 03-1473 (Nov. 15, 2004), the Court (Hull, Marcus, Hancock b.d.) affirmed a conviction and sentence of a defendant convicted of maintaining a place for purpose of manufacturing and distrbuting marihuana. The Court rejected the argument that marihuana plants evidence should have been suppressed because Pineiro did not consent to a search of a house at which marihuana plants were found. Based on Pineiro's "cooperation" with the agents who searched the house, the Court found the requisite consent. The Court also found no reason to suppress Pineiro's inculpatory statements, finding that hewas informed of his Miranda rights before he made the statements. The Court also rejected a challenge to the sufficiency of the evidence. Pineiro contended that the marihuana plants were left over from the prior owner, from whom he had just purchased the house a few weeks before. The Court pointed out that material consistent with the equipment and material used in marihuana grow houses was found in the house. The Court also noted that a photograph of Pineiro in the house was recovered, and neighbors reported a smell of marihuana, and lights on all day and all night. In view of this evidence, the jury was free to reject Pineiro's defense that the material was left over from a prior owner. Recognizing that a conspiracy conviction presented a "closer question," the Court noted that the government presented evidence of Pineiro's close personal relationship with his cousin, who was involved in marihuana trafficking. Further, Pineiro's vehicle was seen parked at the marihuana grow house at thetime when it was owned by his cousin. The Court further noted "substantial similarities" between a grow house operated by the cousin and another grow houseat which Pineiro was arrested. This evidence sufficed to give rise to a jury's guilty verdict beyond a reasonable doubt.