Hernandez: Sufficient evidence for drug conviction

In U.S. v. Hernandez, No 04-16663 (Dec. 27, 2005), the Court (Carnes, Hull & Pryor) rejected challenges to the sufficiency of the evidence, but, accepting the government’s confession of error, vacated a sentence for Booker error.
During a cocaine sting operation which took several days to prepare, Hernandez, who had not been involved in any of the events, appeared on the day of the transaction as a passenger in the vehicle driven by a purchaser of the drugs. Hernandez’ involvement, according to law enforcement (whose account was contradicted by defense witnesses) consisted solely of saying "nine and this," in response to a question about the money for the drugs (a response which didn’t make too much sense since the transaction involved $30,000+) and of saying "trainos de nosotros" ("bring us ours"), a comment which allegedly referred to drugs. Recognizing that the evidence could have been interpreted not to show guilt, the Court nevertheless affirmed Hernandez’ drug trafficking conviction. The Court noted that, on appeal, it gave every reasonably favorable inference to the government, and that the jury could have inferred guilt from Hernandez’ statements and his presence at the scene of the drug transaction. Moreover, the trial court did not abuse its discretion in not granting, post-verdict, a motion for a new trial, because this was not one of the "exceptional" cases in which the judge could overrule the jury’s verdict of conviction. The Court also rejected a Due Process challenge to its standard of review of sufficiency issues.
For the sentence, the Court noted that the district court had stated that it would have imposed a lower sentence had it not been bound by the Guidelines, and therefore committed Booker error in imposing the Guideline sentence. The sentence was vacated, for resentencing.

Gomez-Diaz: Right to Appeal despite appeal waiver

In Gomez-Diaz v. U.S., No. 04-11105 (Dec. 20, 2005), the Court remanded the case to the district court for an evidentiary hearing concerning whether the defendant was entitled to an appeal.
The defendant signed a plea agreement in which he waived most, but not all, issues on appeal. After sentencing, no notice of appeal was filed. The defendant brought a § 2255 proceeding, claiming that his lawyer was ineffective in failing to file a notice of appeal. The district court dismissed the action, on the ground that the defendant failed to identify any meritorious grounds for appeal.
Reversing, the Court pointed out that, under Supreme Court caselaw, the defendant need not show meritorious grounds for appeal, (1) if no notice of appeal despite a specific instruction by the defendant to his lawyer to file an appeal, or (2) if the attorney failed to consult with his client in order to determine whether the client wished to appeal. The Court therefore remanded the case to the district court for an evidentiary hearing to determine whether the defendant specifically requested an appeal, or whether the lawyer failed to determine his client’s wishes.

Maharaj: Vienna Convention Claim Fails

In Maharaj v. Dep’t of Corrections, No. 04-15669 (Dec. 15, 2005), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to life in prison for murder.
Procedurally, the Court declined to enter a stay in view of ongoing collateral proceedings in state court involving the Vienna Convention. The factors involved in such a determination did not weigh in the petitioner’s favor.
The Court held that the district court did not err in considering alleged Brady violations individually, instead of for their cumulative effect. Thus viewed, the Court found no error. For instance, the witholding of a potentially exculpatory polygraph test of the State’s lead witness was not a Brady violation, because defense counsel was sufficiently aware of the test to cross-examine the witness about it. Applying the deferential habeas standard of review, the Court found no error.
The Court also found no error in the failure to provide defense with the murder victims’ briefcase, finding that the defense could have subpoenaed these materials. The Court also noted that the contents of the briefcase were not "material" to the case.
The Court also found no reversible error in the failure of authorities to comply with the Vienna Convention. The Court noted that it was not bound by holdings of the International Court of Justice, and that there was no established Supreme Court precedent at odds with the State court holdings.

Diaz-Boyzo: Sufficient evidence of metamphetamine trafficking

In U.S. v. Diaz-Boyzo, No. 04-15629 (Dec. 14, 2005), the Court rejected a sufficiency of the evidence challenge to a conviction for metamphetamine trafficking.
The defendant claimed that he was merely present in a car when a drug deal was taking place. The Court, however, pointed out that the defendant rode with an accomplice who arranged a drug deal, watched the drug deal from the car, and had a firearm in his possession. Further, the jury was free to disbelieve exculpatory defense testimony. For similar reasons, the Court found sufficient evidence to support the defendant’s conviction of using a firearm in connection with a drug trafficking crime.

Baker. Murder evidence erroneously admitted but not always prejudicial

In U.S. v. Baker, No. 00-13083 (Dec. 13, 2005), the Court, in a 137-page opinion (Barkett, Marcus, George b.d.), affirmed the drug trafficking ("Boobie Boys") convictions and sentences of some defendants but reversed the convictions of others.
At trial, over defense objection, the government introduced evidence of prior murders, allegedly committed by defendants as members of a drug trafficking enterprise.
The Court noted that the trial court’s admission of a police officer’s testimony that his investigation "revealed" a defendant to have previously committed a murder violated the prohibition against hearsay, as well as Rule 404(b)’s prohibition against character evidence, since the murder was not temporally close to the charged offenses, and revealed no common modus operandi.
The district court also erred in the admission of hearsay evidence that one defendant had previously beat up his girlfriend.
The district court also erred in the admission of a police officer’s testimony that he "received information" about defendant committing murders. "The district court explained that it allowed this testimony because it believed that the statements were relevant not to prove their truth, but rather to explain how [the officer] conducted his investigation. We do not understand this reasoning." The Court pointed out that the only relevance of the hearsay was to show who committed the murders.
The district court also erred in admitting police testimony about what he learned when he arrived at the scene of a shooting. These statements were "unquestionably inadmissible hearsay."
The district court further erred in admitting testimony from a declarant, who later died, identifying his assailants. The statement was hearsay, and was not a dying declaration because it was not made believing death was imminent. Further, its admission violated Rule 404(b) because it involved a murder which was not "inextricably intertwined" with the charged offenses.
The district court also erred in admitting police testimony about what witnesses told him about another murder, and Miami Herald articles identifying the perpetrators. This was inadmissible hearsay. It also violated Rule 404(b) because it involved conduct which occurred "outside the temporal scope of all the charged crimes."
The district court did not err in admitting murder victims’ statements to their parents that they feared being killed by a defendant (they were killed). The statements were "present sense impression" statements, admissible under Rule 803(1), and they did not violate Rule 404(b) because these murders were connected with the modus operandi of the defendants’ drug business.
The district court did not err in admitting statements given to police by a witness to a murder, because defense counsel "invited" the error by cross-examining the police about statements made by the witness, and the non-responsive answer was then elaborated on by the police witness on re-direct. The defendants not represented by this defense counsel could raise a plain error challenge to the testimony, having not elicited the testimony themselves, but having not objected either.
The district court also erred in admitting evidence that one of the defendants was featured on the television show "America’s Most Wanted." This evidence was both inadmissible hearsay and "incredibly" inadmissible under Rule 404(b).
The district court also erred in not allowing the defense to cross-examine a government witness concerning the exculpatory portions of a witness statement. This ruling violated Rule 106, which allows a party to introduce a portion of an exhibit, or testimony, which ought to be considered with the portion introduced by the opposing party.
Reviewing the cumulative effect of the above errors on the trials of each defendant, the Court upheld convictions for the defendants as to whom the evidence of guilt was otherwise overwhelming, and reversed as to defendants for whom the evidence was "weak."
The Court rejected several defendants’ challenge to the sufficiency of the evidence, finding it sufficient to sustain their convictions.
Turning to several defendants’ challenge to the denial of their motion for severance, the Court noted that the prosecution’s case involved evidence regarding several murders carried out by one drug trafficking gang against another gang. The Court rejected this challenge, noting that most of the prosecution’s case involved evidence of drug trafficking, not murder, that the murders were linked to the drug trafficking activity, making them relevant to the case, and that most of the defendants were implicated in the murders. The "spillover effect" of the murder evidence was not sufficiently prejudicial to warrant a new trial.
Citing Deck v. Missouri, 125 S.Ct. 2007 (2005), the Court acknowledged that shackling of criminal defendants should "rarely" be used, but found that the defendants who were shackled were not entitled to a new trial. The Court pointed out that bunting draped around defense table prevented the jury from seeing the shackles.
The Court found no error in the district court’s denial of a motion for severance. Given the length of the trial, the trial court had a "legitimate" concern about scheduling the trial. In addition, one defendant had adequate time to "shop" for a new lawyer once it became apparent that his lawyer would not be able to represent him on the date of the scheduled trial.
Turning to sentencing issues, the Court found no error in imposing a sentence enhancement for murder based on hearsay testimony, noting that a sentencing court may consider any relevant information. The Court rejected a number of other challenges to sentences, including a plain error Booker argument, finding no evidence that the judge would have imposed a lesser sentence under an advisory regime.

Arias FRE 408 Applies in Criminal Cases

In U.S. v. Arias, No. 03-12185 (Dec. 12, 2005), the Court (Tjoflat, Barkett & Mills b.d.) upheld most convictions and sentences for defendants convicted of defrauding the Medicare program, but found one error, though harmless, in the failure to exclude evidence under Fed. R. Evid. 408, and reversed one conviction because the defendant was denied a jury instruction concerning his statute of limitations defense.
Rule 408 provides that evidence of compromise of a claim is not admissible. Over defense objection based on Rule 408, the trial court allowed the prosecution to introduce evidence that the defendant, in an administrative proceeding brought by the Florida Department of Health, had admitted certain allegations in order to avoid more formal proceedings and additional penalties. The government argued that Rule 408 does not apply in criminal proceedings, only in civil proceedings. Recognizing a circuit split on this issue, the Court ruled that Rule 408 does apply in criminal cases. The Court found support for its interpretation in the language of the rule, the advisory committee notes, and in the policy favoring settlements.
However, in light of the overwhelming evidence against this defendant, the Court found the Rule 408 error to be harmless.
The Court agreed with another defendant, who claimed that the district court improperly refused to instruct the jury on his withdrawal from the conspiracy defense, an error which affected his statute of limitations defense because the withdrawal occurred more than five years before the government charged him.
The Court noted that mere cessation of participation is not sufficient to establish withdrawal; the accused must also establish that he communicated his withdrawal either to his co-conspirators or to law enforcement.
Here, the defendant, a doctor, relied on a letter notifying Blue Cross/Blue Shield that he was no longer working at seeing patients on behalf of his co-conspirators fraudulent enterprise. Other evidence supported this termination, including subsequent cancellation letters. Viewing this evidence in the light most favorable to the defendant, and in light of the "extremely low" burden the defendant had to meet to be entitled to a jury instruction on his defense, it was error not to give it, and this error warranted a remand for a new trial.

Matthews: Rule 404(b) "turned on its head"?

In U.S. v. Matthews, 2005 WL 3291400 (Dec. 6, 2005), the Court (Tjoflat, Hill, Granade b.d.), on panel rehearing, vacated its prior published opinion which had reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b). The Court otherwise reaffirmed its prior rejection of defendant’s other arguments.
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These witnesses testified that Matthews participating in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court noted that the evidence of the defendant’s 1991 conviction for drug trafficking was "relevant" to the charges for more recent drug trafficking, finding that a defendant’s not guilty plea places his intent at issue. The Court recognized that there was an eight-year gap between the prior conviction and the offenses charged in this case, but concluded that this did not make the prior evidence "too abstracted" to be sufficiently probative. The Court concluded that the evidence was not unduly prejudicial, finding that the government needed the evidence to establish the defendant’s intent.
[In a separate concurrence, Judge Tjoflat recognized that the 404(b) result was dictated by prior precedent, but called for the Court to reexamine this precedent, which had "turned Rule 404(b) on its head."].

Caldwell: Brother's sporting possession of firearm

In U.S. v. Caldwell, No. 05-12640 (Dec. 5, 2005), the Court affirmed a conviction and sentence imposed on a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
The defendant claimed that he had found his brother’s firearm, which the brother used for sporting purposes, and had pawned it because he was aware that it was unlawful for him to possess it. The pawning was meant to dispossess the defendant of the fireaerm.
The Court rejected this challenge to the defendant’s conviction, pointing out that his defense fell short of what was required to establish a "necessity" defense.
The Court also rejected the defendant’s claim that he was entitled to a lower sentence under USSG § 2K2.1 because he possessed the firearm "solely for sporting purposes." The Court pointed out that it was the defendant’s brother who possessed the firearm for sporting purposes, not the defendant himself, who possessed the firearm to pawn it. The Court acknowledged cases in other circuits which had construed the Guideline more liberally, but the Court gave it a narrow application and found that Caldwell was not eligible for the lower sentence. The Court noted that the district court had found Caldwell’s reason for possessing the firearm unconvincing, pointing out that Caldwell never gave the pawn ticket to his brother, or the money he received from the pawn shop.

Talley: Guideline sentence not per reasonable

In U.S. v. Talley, No. 05-11353 (Dec. 2, 2005), the Court rejected the government’s argument that, post-Booker, a sentence within the guideline range is "per se reasonable," but held that a sentence is not unreasonable when the district court fails to mention or discuss all of the sentencing factors set forth in 18 U.S.C. § 3553(a).
Citing U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005), the Court stated that "an acknowledgment by the district court that it has considered the defendant’s arguments and the factors in section 3553(a) is sufficient." In Talley’s case, the district court satisfied this requirement when it stated at sentencing: "Based on all the facts and circumstances of this case, I think that the guidelines do produce a fair and reasonable sentence considering the factors set forth in 18, section 3553(a)." No further elaboration was necessary.
The Court rejected the government’s position that a Guideline sentence was "per se reasonable," but noted that "use of the Guidelines remains central to the sentencing process." The Court added: "ordinarily we would expect a sentence within the Guideline range to be reasonable."
Reviewing the sentence for "reasonableness," the Court noted that this was a deferential standard of review. "In our evaluation of a sentence for reasonableness, we recognize that there is a range of reasonable sentences from which the district court may choose, and when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be reasonable." In Talley's case, he could not point to anything that suggested that his low-end of Guideline sentence was unreasonable.

Grant: Full face value of counterfeit checks

In U.S. v. Grant, No. 04-12268 (Nov. 29, 2005), the Court upheld a loss amount calculation, for sentencing purposes for a defendant convicted of producing and possessing counterfeit corporate checks, which included the full face amount of checks found in the defendant’s possession.
The Court noted that the Guidelines direct courts to measure "intended loss." The Court noted authority in other circuits that one can assumed that a defendant intended to utilize the full face value of worthless checks. The Court analogized to credit card theft, in which it has held that the intended loss includes the total line of credit to which defendants have access. The Court further pointed to circumstantial evidence that Grant intended to utilize the full face value of the checks, and to Grant’s inability to point to countervailing evidence. In a footnote, the Court dismissed the impossibility of a defendant’s using the full face value of a counterfeit check (because the account had insufficient funds), noting that the defendant’s subjective intent governs the loss calculation under the Guidelines.

Rahim: 924(c) conviction for both bank robbery & carjacking

In U.S. v. Rahim, No. 05-11087 (Nov. 29, 2005), the Court upheld two convictions for 924(c) violations arising out of a bank robbery and a subsequent carjacking in an attempt to escape from the bank robbery. The Court rejected the argument that a single 924(c) conviction was possible, because the robbery and the carjacking were part of a single course of conduct. The Court sided with other circuits to have considered the issue in rejecting this interpretation of § 924(c). The Court also rejected a Double Jeopardy challenge to the twin convictions, pointing out that each § 924(c) conviction involved a fact which the other did not (one involved use of a firearm during a bank robbery, the other during a carjacking), and therefore satisfied the test of Blockburger v. U.S., 284 U.S. 299 (1932).
Finally, the Court rejected the argument that the defendant was incompetent at sentencing, agreeing with the district court that the defendant was faking mental incompetence to avoid being sentenced.

Glover: Guideline mid-range sentence not harmless error under Booker

In U.S. v. Glover, No. 04-16745 (Nov. 29, 2005), the Court upheld the defendant’s conviction for being a felon in possession of a firearm, but vacated his sentence for Booker error.
The Court rejected the argument that his statement was obtained in violation of Miranda because he lacked sufficient I.Q. to understand the warnings. The Court noted the police testimony that Glover interacted normally and intelligently with the arresting officers.
The Court also rejected Glover’s challenge to the sufficiency of the evidence, noting that two witnesses testified that the gun was his.
The Court found that there was Booker error in the sentencing court’s reliance on mandatory Guidelines, and that this error was not harmless. The Court rejected the government’s argument that the error was harmless because the judge imposed sentence in the middle of the Guidelines range. Though recognizing cases in other circuits which took the government’s position, the Court found that the fact of a mid-range sentence did not suffice to meet the government’s heavy burden of showing that a sentence imposed under a then-mandatory system represented harmless error.

Williams: Does relevant conduct for possession encompass assault?

In U.S. v. Williams, No. 05-11318 (Nov. 30, 2005), the Court (Anderson, Carnes, Black) approved an enhancement for use of a firearm which caused was discharged and caused serious bodily injury, even though the defendant, though charged with being a felon in possession of a fiream was not charged or convicted of possessing a firearm used in a separate assault, but another firearm. The Court concluded that the Guideline encompassed "any" fireram, which "covers any fireram that is used in connection with the commission of another offense which is within the relevant conduct of the charged offense."
The Court noted a circuit split on the meaning of the Guideline cross-reference, but concluded that the term "any firearm" as used in the Guideline can apply to firearms not named in the indictment.
The Court also noted a circuit split on whether the other offenses which can be encompassed with a Guideline cross-reference must also be part of "relevant conduct." The Court concluded that conduct must be part of "relevant conduct" in order to be a basis for enhancement under the USSG § 2K2.1(c)(1) cross-reference.
The Court noted that the Government had argued that the assault in which another firearm was used should be considered part of "relevant conduct" because it was conduct that should be "grouped" under § 3D1.2(d). However, the government’s argument was misplaced, because the Guidelines specifically exclude "assault" from grouping analysis. Because this was the only rationale for the enhancement, the Court vacated the sentence and remanded for resentencing, at which the district court could examine whether other Guideline provisions allow assault to be considered "relevant conduct" for a firearm possession offense.

Michael: No ineffective assistance on PTSD defense

In Michael v. Crosby, No. 04-10137 (Nov. 21, 2005), the Court affirmed the district court's denial of a habeas petition by a state inmate convicted of killing her ex-husband by shooting and stabbing him several times in the presence of their two sons. Specifically, the Court held that the state court's decision, following a full evidentiary hearing, that Michael's counsel was not ineffective under Strickland was not contrary to, or an unreasonable application of, clearly established federal law. Michael argued that her trial attorney had rendered ineffective assistance by failing to properly investigate or present a PTSD defense. Her trial attorney had testified at the state habeas hearing that, at the time of the trial, PTSD evidence was not admissible under Florida law to establish a complete defense. He thus elected to pursue a defense based on Battered Spouse Syndrome. When his experts opined that Michael did not suffer from BSS, counsel pursued a defense of learned helplessness which was included in the diagnosis of one expert. All the experts agreed that Michael exhibited symptoms of PTSD. The trial court excluded the evidence of learned helplessness. Michael was acquitted of first-degree murder and convicted of the lesser-included offense of second-degree murder with a firearm. The trial court sentenced her to life imprisonment based largely on the brutal nature of the offense and the fact that her children were present at the scene of the crime. The state court, on habeas review, found that the decision of trial counsel was a reasonable trial strategy in light of the law on PTSD evidence at the time. It thus held that counsel was not ineffective under Strickland. The Court agreed with the district court that the state court decision was not contrary to, or an unreasonable application of, Strickland and affirmed the denial of habeas relief.

Wood: Obstruction enhancement ok for 1st trial

In U.S. v. Wood, No. 04-11849 (Nov. 21, 2005), the Court affirmed a 97-month sentence for importation of 500 grams or more of cocaine. First, the Court rejected Mr. Wood's claim that the district court improperly included an obstruction of justice enhancement in its guidelines calculation where the enhancement was based on his testimony at his initial trial and where he did not testify at the re-trial following a reversal by the court of appeals on grounds unrelated to the obstruction. The Court then found that there was Booker error where the district court imposed a sentence under a mandatory guidelines scheme. However, reviewing for plain error, the Court held that Wood failed to demonstrate that the district court would have imposed a lower sentence even though it imposed a sentence at the low-end of the sentencing range.

Munoz: Sufficient telemarking fraud evidence

In U.S. v. Munoz, No. 03-16216 (Nov. 23, 2005), the Court let stand the convictions and sentences of the appellants, Munoz and Llona, who had been tried and convicted for their part of a scheme to illegally sell, through telemarketing and without the requisite prescriptions, two treatments for erectile dysfunction. Briefly, Munoz and Llona concocted a scheme involving a urologist and a pharmacist in which the urologist would write phony prescriptions, in the names of his real patients, for three prescription drugs used to treat erectile dysfunction. The pharmacist would then combine the three drugs into an urethral suppository and ship that back to the urologist. Munoz and Llona would pay for the drugs, including a nice profit for the doctor and pharmacist, and would then sell the suppository without a prescription through telemarketing, mostly over Spanish airwaves, under the name "Power-Gel." An oral form, "Vigor," was later added. The telemarketing touted "Power-Gel" and "Vigor" as all-natural, non-prescription drugs that were safe to use even by those suffering from diabetes, high blood pressure, heart problems, kidney problems, etc. The drugs were also touted as being 100% effective. Following a trial, the appellants were convicted of conspiracy, mail fraud and introducing into interstate commerce a misbranded prescription drug. They were acquitted on charges of money-laundering conspiracy, wire fraud, and misbranding drugs after shipment in interstate commerce. The district court sentenced each of them to a 51-month term of imprisonment.
The Court rejected indictment and sufficiency challenges to the charge that the appellants conspired to sell prescription drugs without a prescription. The challenges rested largely on the fact that the urologist had in fact written prescriptions for the drugs. The Court pointed out that despite the fraudulent prescriptions, Munoz and Llona knowingly sold the drugs to the eventual users without a prescription. Affirming the mail fraud convictions against a sufficiency claim, the Court held that it was "irrelevant whether or not appellants personally knew of, communicated with, or directed activities toward the six named victims."
The Court also rejected a challenge to the district court's loss calculation of $1.5M to $2.5M. The Court noted that a sentencing court may calculate loss from either the perspective of the actual loss to the victims or the actual gain by the defendants. Here, the district court used a hybrid system in which it calculated the gain by the defendants ($2.21M) and reduced it by 30% based in large part from the trial testimony that the placebo effect alone would have helped 30% of users. The Court noted that both figures were within the calculated range. Finally, reviewing for plain error, the Court held that, despite the presence of a Booker error, the appellants failed to demonstrate that the district court would have imposed a lower sentence under an advisory sentencing scheme.

James: Possession of 200 grams of cocaine is "serious drug offense"

In U.S. v. James, No. 04-12915 (Nov. 17, 2005), the Court, on appeal by the government, vacated a 71-month sentence for a felon-in-possession conviction and remanded with instructions to resentence Mr. James as an armed career criminal with a fifteen-year minimum mandatory sentence. At the core of the appeal was the question of whether a Florida conviction for trafficking in cocaine by possession of between 200 and 400 grams of cocaine constituted a "serious drug offense" under the ACCA. The district court noted that under Florida law such a conviction did not have as an element the intent to distribute, and it thus reasoned that it did not qualify as a predicate offense under the ACCA which defines a serious drug offense as a offense "involving" the intent to distribute. Reversing, the Court held that Florida law "infers an intent to distribute once a defendant possesses a certain amount of drugs," and that the conviction qualified as a predicate offense. On cross-appeal, the Court affirmed the district court's holding that attempted burglary of a dwelling is a "violent felony" under the ACCA.

Ibarra-Castellano: Crawford does not bar warrant of deportation document

In U.S. v. Ibarra-Cantellano, No. 05-11143 (Nov. 15, 2005), the Court affirmed the defendant’s conviction and 100-month sentence for illegal reentry after deportation following a conviction of an aggravated felony.
The Court rejected the argument, based on Crawford v. Washington, 541 U.S. 36 (2004), that it violated the Confrontation Clause for the government to rely on a warrant of deportation document to establish that Cantellano had previously been deported, and that Cantellano had the right to confront the government agent who actually witnessed him leave the country. The Court ntoed that Crawford merely reached the Confrontation Clause requirements for "testimonial" evidence. The Court found that a warrant of deportation was non-testimonial evidence, because it "is recorded routinely and not in preparation for a criminal trial." The Court noted that its holding was consistent with the two other Circuits to have reached the issue.
The Court also rejected the argument that Crawford applied at the sentencing hearing, and should have precluded the admission of hearsay evidence. The Court noted that other circuits had also concluded that Crawford’s Confrontation Clause holding does not apply at sentencing.
The Court also rejected the argument that Shepherd v. U.S., 125 S.Ct. 1254 (2005), which held that a sentencing court cannot consider police reports and complaint applications to determine the nature of a prior conviction, did not preclude a court, at sentencing, from relying on presentence reports and fingerprint records to determine the fact – as opposed to the nature – of the defendant’s having been previously convicted of a felony.
Finally, the Court rejected the argument that the Sixth Amendment precluded the judge from relying on the fact of a prior conviction to enhance the sentence, citing Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Rojas: Criminal case does not include obligor/indemnitor contract dispute

In U.S. v. Rojas, No. 04-10877 (Nov. 10, 2005), the Court held that a district court lacks subject matter jurisdiction, as part of a criminal proceeding, to adjudicate a dispute between an obligor who pledged collateral with a surety company for a bond for a criminal defendant out on bail, and the surety company, regarding the amount of money owed by the surety to the pledgor after the defendant failed to appear and the collateral was forfeited. The Court pointed out that the dispute did not involve the forfeiture of a bond "or any of that," but merely a contractual dispute over the indemnification contract. This dispute should have been resolved in a separate civil proceeding. The Court therefore vacated the order of the district court which directed payment by the surety to the obligor.

Jordan: No prosecutorial misconduct, no Double Jeopardy bar

In U.S. v. Jordan, No. 04-15381 (Nov. 3, 2005), the Court (Anderson, Black, Carnes), on a defendant’s interlocutory appeal, held that there was no basis for a Double Jeopardy bar to a second trial after the first trial had ended because the district court had found prosecutorial misconduct, but the Court of Appeals had determined that there was, in fact, no prosecutorial misconduct.
The defendant argued that even though the Court of Appeals had found no prosecutorial misconduct, the intent of the prosecutor was to goad the defense into making a motion for a mistrial, and that even though this motion was ultimately unsuccessful, Double Jeopardy should prevent further prosecution because the prosecution’s intent was wrongful.
The Court rejected the argument finding that it was precluded by the law of the case doctrine. The Court noted that a jurisdictional premise for its prior decision, which found no prosecutorial misconduct and reversed the district court’s dismissal of the case, was that Double Jeopardy would not bar further jurisdiction. Having held in its prior decision that it had jurisdiction to consider the government’s appeal, the Court implicitly held that Double Jeopardy would not bar further prosecution. This holding was now the law of the case, and doomed a Double Jeopardy challenge to further prosecution.
The Court further stated that, even if the law of the case had not applied, and even if it accepted the defendant’s "far fetched" theory that the prosecution opposed dismissal of the case on prosecutorial misconduct grounds while really trying to goad the defendant into seeking dismissal of the case, this theory would not support a Double Jeopardy bar. The Court held that prosecutorial misconduct – which it had no found present in this case – was a necessary element for a Double Jeopardy bar to apply in these circumstances.

Moriarty: Lifelong supervised release for sex offender

In U.S. v. Moriarty, No. 04-13683 (Nov. 1, 2005), the Court affirmed a conviction but reversed in part a sentence of a defendant who pled guilty to three counts of child pornography-related offenses.
The Court recognized that the district court failed during the plea colloquy to fully obtain a guilty plea from Moriarty, and to inform him of certain waivers which accompanied the decision to plead guilty. However, reviewing the matter to see if Moriarty’s "substantial rights" were affected, the Court noted that Moriarty responded "Because I am guilty" to the court’s questionind. Further, Moriarty could not show a "reasonable probability" that, but for the omitted plea information, he would not have pled guilty.
The Court rejected the argument that Booker error required reversal of Moriarty sentence. The Court pointed out that the district court at sentencing expressed intent to take Moriarty "out of society" by imposing the statutory maximum 240-month sentence and a lifelong term of supervised release. This indicated that Moriarty would not have received a lesser sentence under the advisory Guideline regime.
The Court also rejected the challenge to a USSG § 2G2.2(b)(4) five-level enhancement for a pattern of activity involving the sexual abuse of a minor (whether or not this conduct occurred during the course of the offense of conviction). At sentencing, one of Moriarty’s neighbors testified to a number of facts indicating that on one occasion, Moriarty had broken into her six-year old son’s bedroom, sexually assaulted him, and stolen his pull-up pajama pants. The Court found that this evidence sufficed to support the enhancement.
The Court also rejected the challenge to the district court’s refusal to grant a downward adjustment for acceptance of responsibility, despite Moriarty’s guilty plea. The Court noted that Moriarty contested the § 2G2.2(b)(4) enhancement, and that this was a basis for denying the acceptance of responsibility adjustment.
The Court rejected an Eighth Amendment challenge to the lifelong term of supervised release. The Court noted that Moriarty was 21 when he committed the offenses, but, regardless of his moral responsibility, the need for supervised release was to fulfill the goal of rehabilitation, and was consistent with the legislative history of the statute.
The Court, however, agreed with Moriarty that the "general sentence" of twenty years, which did not specify a specific count of conviction, and which exceeded the 10-year maximum for one count, was invalid . The Court vacated the sentence for "clarification" of the sentence. Similarly, the lifelong term of supervised release imposed as part of a general sentence was invalid, because the district court did not specify the count of conviction which supported this term of supervised release, and it exceeded the maximum for one count of conviction.

Dye: Sixth Circuit reversed on habeas

In Dye v. Hofbauer, No. 04-8384 (Oct. 11, 2005), the Supreme Court reversed the denial of habeas relief to a Michigan defendant. The Court found that the Sixth Circuit was wrong on both reasons it gave for denying habeas relief. Contrary to this opinion, first, the inmate did raise in state court a constitutional challenge to the prosecutor’s misconduct during the jury trial, and, second, the inmate did raise this same claim with sufficient particularity in his federal habeas petition.

Schriro v. Smith: States get first crack at mental retardation rules

In Schriro v. Smith, No. 04-1475 (Oct. 17, 2005), the Supreme Court summarily reversed the Ninth Circuit’s order requiring a jury trial on the question of the mental retardation of a Arizona defendant sentenced to death. The Court noted that Atkins v. Virginia, 536 U.S. 304 (2002) instructed the States to develop ways to enforce the constitutional restriction on the execution of the mentally retarded. The Ninth Circuit, therefore, was not authorized to impose a jury trial condition before Arizona developed its own procedures.

Eberhart: Rule 33 7-day deadline not jurisdictional

In Eberhart v. U.S., No. 04-9949 (Oct. 31, 2005), the Supreme Court held that the time limit of Fed. R. Crim. P. 33(a) for motions for a new trial, which requires such motions to be filed "within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period," is not jurisdictional. Instead, it is a "claim processing rule." Such rules are forfeitable by the party opposing the untimely motion if they are not properly invoked. The Court acknowledge confusion in its precedent which led Circuit Courts to treat Rule 33(a) as jurisdictional.

Kane: Pro se right to law library not clearly established

In Kane v. Espitia, No. 04-1538 (Oct. 31, 2005), the Supreme Court reversed the Ninth Circuit’s grant of habeas corpus relief to a California inmate who chose to proceed pro se but who was denied access to a law library in preparation for trial. The Court pointed out that its precedent, including Farretta v. California, 422 U.S. 806 (1975), had not clearly established whether a pro se defendant is entitled to library access, and in the absence of such caselaw one could not say that the California state rulings were contrary to clearly established law, as required by 28 U.S.C. § 2254(d)(1).http://a257.g.akamaitech.net/7/257/2422/31oct20051045/www.supremecourtus.gov/opinions/05pdf/04-1538.pdf

York: Waldon governs grand jury publicity

In U.S. v. York, No. 04-12354 (Oct. 27, 2005), the Court affirmed a conviction and 1,620-month sentence on a defendant convicted of RICO conspiracy and other crimes arising out of the interstate transport of minors with the intent to engage in unlawful sexual activity.
The Court rejected the argument that the indictment was invalid because the Georgia grand jury which indicted him was infected with adverse pre-trial publicity. The Court noted that U.S. v. Waldon, 363 F.3d 1103 (11th Cir. 2003) held that the protections against publicity affecting a jury during trial did not apply to a grand jury. The Court explained that its distinction was based on the different functions of the two bodies, and the different procedural restrictions which apply. Further, York did not show that the publicity surrounding his case "substantially influenced" the decision to indict him.
The Court also rejected the argument that the sexual abuse charges should have been severed from the financial structuring charges. The Court "readily" concluded that York showed no "actual prejudice," and noted that the jury was specifically instructed to consider each count separately.
Finally, the Court found no Booker plain error in York’s sentence. The Court pointed out that that district court, while imposing the consecutive sentences which yielded the 1,620-month total, stated the sentence was "appropriate" in light of "the nature of the crimes, the victims involved, the length of the sentence, and the totality of the circumstances." These comments undercut any inference of plain error based on the district court’s misapprehension of its powers under the then-mandatory Guidelines.
Finally, the Court rejected an ex post facto challenge to the court’s reliance on a 2000 version of the Guidelines, noting that an "essentially identical" version of the specific cross-reference at issue was in effect in the earlier version of the Guidelines.

Ochoa: No Batson "pattern" vs. hispanics

In U.S. v. Ochoa-Vasquez, No. 03-14400 (Oct. 20, 2005), the Court (Hull, Edenfield b.d., Barkett dissenting), the Court affirmed the conviction and sentence for drug trafficking.
The Court rejected the argument that certain documents in a related case should have been unsealed, because they involved a potential witness. The Court noted that most of the documents had been unsealed, and that Ochoa’s renewed motion to unseal had failed to specify the new grounds for the unsealing in violation of the Local Rule, which requires the different facts for a renewed motion to be stated by the movant. Further, the failure to unseal the documents did not prejudice Ochoa, because he failed to show he would have called the potential witness, and the Court’s own review of the documents did not reveal anything exonerating Ochoa.
The Court agreed with Ochoa that the district court’s "sealed docket" violated the Court’s caselaw regarding open trials, but found no prejudice because the district court ultimately unsealed most of the documents, and the other documents did not contain exonerating material.
The Court upheld the district court’s decision to empanel an anonymous jury, noting Ochoa’s link to an organized criminal organization and past efforts to obstruct justice by killing informants.
The Court rejected Ochoa’s Batson challenge to the government’s use of peremptory challenges against Hispanic venirepersons. Ochoa’s challenge rested on the percentage of strikes used to eliminate Hispanic jurors. But the district court found that it could not ascertain which anonymous venirepersons were Hispanic, and the Court deferred to that finding. The Court noted that the better practice would be to disclose to the parties beforehand, in anonymous jury cases, the self-reported ethnicity of potential jurors. Moreover, even if the district court could in fact determine the ethnicity of the stricken jurors, Ochoa failed to show a "pattern" of strikes. The government used five of its nine strikes against Hispanics, but accepted six; Ochoa struck seven of 13.

Callahan: no habeas relief for trial judge stepping into police interrogation

In Callahan v. Campbell, No. 04-12009 (Oct. 5, 2005), the Court (Tjoflat, Black, Wilson) denied habeas relief to a death row inmate sentenced to death for a 1982 murder.
The Court rejected challenges based on the fact that the Alabama trial judge who ultimately presided over Callahan’s trial stepped into the police interrogation room, while Callahan was being interrogated after arrest, to ascertain whether his right to counsel was being respected.
The Court found no Supreme Court case directly on point, and noted that the Supreme Court has merely held that a judge cannot adjudicate a case where he was also an investigator for the government. Here, the judge was not an investigator for the government, having not been in the room during the interrogation, and having only interved on the right to counsel question.
Further, the judge’s failure to recuse himself did not violate Callahan’s Sixth Amendment right to call witnesses. The Court noted that others testified about the incident and that the law does not give a defendant a right to call "a witness he perceives as most credible."
The Court also rejected the argument that Callahan’s trial lawyer was constitutionally ineffective for failing to object to the admission of some of Callahan’s incriminating statements to police. The Court noted that the Alabama state courts had found that these specific statements were admissible under state law, and that a lawyer is not ineffective for not objecting to statements that were admissible.
The Court also found that Callahan’s lawyer, Knight, who had since died, was not ineffective at the penalty phase. For one, when a lawyer is dead and unavailable, the Court presumes he was not ineffective. For another: "When we place ourselves in Knight’s position, which we must, we see the following: overwhelming evidence that his client committed a premeditated kidnapping, rape, and murder of a random victim, including a confession to the kidnapping and rape in which he concocted a prior sexual relationship with the victim, and insinuated his ex-wife was the real murderer; his client’s last two wives left him, in part, bexause he was physically abusive; his client had two previous convictions for assault with intent to murder, one of which arose from when he shot his own 11-year-old nice in the foot; his client’s past included no compelling mitigation evidence, such as mental health problems or physical abuse; and his client had already once been sentenced to death for the murder [in a sentence that was overturned and remanded]. Given the hand Knight was delath, we cannot say a decision to focus on mercy instead of mitigation was an unreasonable one."

Lee: Sufficient Mail Fraud Evidence

In U.S. v. Lee, No. 04-12485 (Oct. 5, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed two defendants’ mail fraud convictions, but vacated one sentence on a double counting issue as to which the parties agreed.. The scheme involved writing checks on closed bank accounts.
The Court rejected the defendants’ challenge to the sufficiency of the evidence, finding that the letters the defendants wrote to their banks about their bank accounts were designed to further their scheme, that the letter written about foreclosure of their property were also designed to "obfuscate." The Court rejected the argument that the mailings were litigation documents which could not give rise to criminal liability. The Court distinguished U.S. v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002), pointing out that the documents at issue did not involve court filings, but third-parties, whom they were trying to influence as part of their scheme. Moreover, Pendergraft did not involve documents which evidenced an "intent to deceive." The Court recognized "the real public policy concerns in allowing litigation documents to form the basis for a mail fraud claim," but said "it cannot countenance mailng false claims clothed in legalese to lenders, with the intent of perpetrating or perpetuating a fraud, even where litigation is ongoing."
Turning to the Booker sentencing issues, the Court found no error as to one defendant where the district court stated on the record that it would have given the defendant the same sentence whether the Guidelines were mandatory or advisory. As to the other defendant, the Court found no error in denying her a continuance so that she could be sentenced post-Blakely, because counsel ultimately informed the court that the defendant was prepared to go forward on the appointed sentencing date.
The Court rejected a challenge to the loss amount calculation, finding the court’s estimate of the loss was supported by the evidence. The Court also rejected defendant’s argument that the sentence should have reduced because the scheme was interrupted when the victims refused to honor the bad checks. The Court noted that an interruption beyond the control of the defendant is not a basis for a sentence reduction.
The Court rejected the argument that the sentence should not have been enhanced based on the existence of ten or more victims because some of these victims were able to offset their losses. The Court concluded that despite the offset, the victims were still considered victims for Guidelines purposes.
Finally, the Court rejected a hearsay challenge to the admission of a bank letter warning the defendants of "potential bank fraud," finding that the letter was not admitted for its truth, but for the purpose of showing that the banks were aware that the transactions were wrongful and so informed the defendants. The Court also rejected the challenge to the testimony of a lawyer that the defendants’ actions were illegal, pointing out that this statement was elicited on redirect, in response to cross-examination which opened the door.

Ramirez. Booker plain error where court felt it had no discretion

In U.S. v. Ramirez, No. 04-12040 (Sept. 30, 2005), the Court (Tjoflat, Anderson & Birch) affirmed the defendants’ cocaine-trafficking convictions, but vacated the sentences, finding "plain error" under Booker.
Co-defendants Ramirez and Angulo-Quinones were arrested on the high-seas; they had been aboard a go-fast vessel which contained more than 400 kilos of cocaine. Over Angulo-Quinones’ objection, the district court admitted in evidence, during his cross-examination, the fact of his arrest for a prior incident also involving a go-fast vessel and large quantities of cocaine.
The Court rejected Ramirez’ challenge to the sufficiency of the evidence. The Court concluded that his presence in proximity to a large quantity of cocaine in clear view on board his vessel, coupled with his changing account of events, sufficed to convict.
The Court also rejected Ramirez’ argument that his case should been severed, because of the prejudicial impact of the admission of Angulo-Quinones’ prior arrest for a similar offense. The Court found that any prejudicial impact was mitigated by the judge’s limiting instruction.
The Court also found no basis for a mistrial in the trial court’s instruction to the jury, in response to a question from the jury during deliberations, that it need no concern itself with this question. The Court found the instruction proper in the circumstances.
The Court found no reversible error in the admission of Angulo-Quinones’ prior arrest for a similar crime. The evidence was introduced during cross-examination, and was sufficiently relevant to Angulo-Quinones’ denial of not being acquainted with an accomplice in both incidents, and to his intent for the instant offense.
The Court rejected the "double-counting" challenge to the Guideline increase in Angulo-Quinones’ sentence for being a captain of a vessel, and for being the "leader and organizer" of the offense. The Court noted that it has approved the imposition of both enhancements in like circumstances in U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003), and it rejected Angulo-Quinones’ attempt to distinguish this case on its facts, pointing out that Rendon did not require "specific facts" to be present for the two enhancements to be simultaneously applicable. Further, the district court correctly determined that Rendon controlled the double-counting challenge. However, because the Court was vacating the sentence under Booker, and because it could not be certaint that the district court would have given both enhancements in light of Booker, the Court instructed the district court to "revisit" the organizer/leader and captain of the boat enhancements
on remand.
Finally, the Court found plain error under Booker in the sentences. During sentencing, the district court said that it might have imposed a different sentence had it had "any discretion in this matter." Instead, the court said it felt bound by the Guidelines, and imposed sentences of 235 months and life on Ramirez and Angulo-Quinones, respectively. This showed plain error. The Court therefore vacated the sentences and remanded for resentencing. http://www.ca11.uscourts.gov/opinions/ops/200412040.pdf

Scott: Post Booker sentencing need not discuss each 3553(a) factor

In U.S. v. Scott, No. 05-1183 (Sept. 27, 2005), the Court affirmed the district court’s decision not to impose a sentence below the advisory Guideline range.
The Court noted that the law does not require the district court "to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors." The district court "adequately and properly considered the § 3553(a) sentencing factors," as evidenced by the fact that Scott’s counsel "argued at length that the factors in § 35539a) warranted a sentence below the Guidelines range." "In imposing a sentence at the low end of the Guidelines range, the district court stated that it had considered all the obvious things that you would normally take in consideration, particularly ‘the age of the child [victim].’ Thus, the district court explicitly considered the circumstances of the offenses. Further, the district court explicitly acknowledged that it had considered Scott’s arguments at sentencing and that it had considered the factors set forth in § 3553(a). This statement alone is sufficient in post-Booker sentences."

Quan Chau: Crawford Inapplicable at Sentencing

In U.S. v. Quan Chau, No. 05-10640 (Sept. 27, 2005), the Court, on "plain error" review, rejected the argument that the sentencing court erred in using hearsay evidence at the defendant’s sentencing hearing, in violation of the Confrontation Clause right recognized in Crawford v. Washington, 541 U.S. 36 (2004).
The Court noted that Crawford involved the use of testimonial evidence at trial, not sentencing. The Court recognized that its rule may be extended to sentencings in the future. However, in view of other Circuits’ holdings that Crawford does not alter the law that admission of hearsay testimony at sentencings is "okay," and the absence of precedent from the Eleventh Circuit or the Supreme Court on point, no plain error occurred.
The Court also rejected the challlenge to the defendant’s sentence, pointing out that the district court recognized its post-Booker authority to treat the Guidelines as advisory, even as it imposed a Guideline sentence.

Thompson: sentence vacated for Booker plain error

In U.S. v. Thompson, No. 04-12218 (Sept. 1, 2005), the Court upheld the convictions but vacated the sentences of defendants convicted of cocaine trafficking.
The Court rejected a challenge to the sufficiency of the evidence, noting the "parade" of government witnesses who testified as to their involvement in drug trafficking.
The Court also rejected one defendant’s motion for a severance. The Court pointed out that a post-arrest statement of one defendant did not mention a co-defendant, and its admission in evidence therefore did not violate the Confrontation Clause. Moreover, the "spillover effect" of evidence of one defendant as to another was not of a nature to create prejudice.
The Court also rejected a motion for a new trial based on new evidence, finding that, with diligence, the defendant could have obtained the evidence before trial.
The Court also rejected one defendant’s claim that her post-arrest statements were involuntary. The Court noted the credibility question presented as to whether the police withheld pain medication until they obtained responses to their questioning, but noted the Magistrate Judge’s resolution of these questions, and found no error in the district court’s adoption of them.
The Court also rejected the argument that the prosecutor’s closing statement violated the defendant’s right not to testify when it told the jury not to reward the co-defendant for testifying. The Court noted that the prosecutor did not directly or indirectly tell the jury to consider this defendant’s decision not to testify.
Finally, reviewing the sentences for Booker error under the plain error test, the Court vacated the sentences. The Court pointed out that during sentencing the district court characterized the 360-month as severe, and wondered whether it effectuated Congress’ true intent. The defendants therefore met the "heavy" burden of showing plain error.

Williams: Supervised release violations capped

In U.S. v. Williams, No. 04-15732 (Sept. 19, 2005), the Court (Dubina, Carnes, Marcus) reversed the imposition of a 21-month term of incarceration for a violation of supervised release, because Williams had previously been sentenced to incarceration for previous violation of supervised release, and the 21-month sentence would cause his total time incarcerated to exceed the 2-year aggregate maximum for supervised release violations. In so ruling, the Court accepted the government’s concession that the applicable statute (since revised), 18 U.S.C. § 3583(e)(3), contemplated a two-year statutory cap for the aggregate of all supervised release violations.
The Court rejected other issues on appeal because (a) a notice of appeal was not filed as to a prior first revocation of supervised release, (b) Williams failed to exhaust administrative remedies regarding his claim for additional credit for time served by not first pursuing this issue in a claim before the Bureau of Prisons, and (c) Williams other challenge to his sentence was moot because of the Court’s vacatur of the sentence on the grounds discussed above.

Howell: Felon can't get his guns back

In U.S. v. Howell, No. 04-13343 (Sept. 15, 2005), the Court (Birch, Carnes, Fay) held that the district court correctly rejected the defendant’s Rule 41 motion for return of $140,000 seized at the time of arrest and for the return of three firearms seized during a consented search at this residence.
The Court pointed out that the $140,000 was government cash used in sting operation to purchase drugs from Howell – a transcation for which he was convicted. Accordingly, this cash "never belonged to the defendant and he never gained ownership or control of these funds." Further, the Court rejected the argument that a court, not the government, should decide to whom the cash belonged: "The money belonged to the government at all times throughout the drug transaction."
The Court also noted that because Howell was a felon, he was not entitled to return of the firearms. This was contrary to federal law. The court noted that even constructive possession of a firearm by a criminal was illegal, and therefore declined to allow the firearms to gun to a relative, to be put up for sale.

Miranda: Reversing judgment of acquittal

In U.S. v. Miranda, No. 04-15920 (Sept. 14, 2005), the Court (Tjoflat, Pryor, Alarcon b.d.) reversed a judgment of acquittal granted to a defendant convicted of conspiracy to distribute methamphetamine.
The district court had found the evidence insufficient to sustain a conviction, concluding that it only showed that Miranda was present in an apartment containing methamphetamine, and fled to a back room when police stormed the premises. Reversing, the Court pointed to a number of facts which the jury could have attached incriminatory inferences to. Miranda had a pre-existing relationship with a significant drug figure. Miranda was present in the aparmtment when durgs were being couriered, and possibly discussed. There was a pervasive smell of acetone in the apartment. When officers raided the apartment, Miranda immediately ran to a back bedroom which contained large quantities of drugs, and two firearms, thereby attempting to protect the drugs from being seized and use guns to do so. (This evidence also supported Miranda’s conviction for possession of a firearm in furtherance of a drug trafficking crime).
Further, the district court relied on exculpatory evidence that was not presented to the jury. This should not have been considered in the motion for acquittal.
The Court rejected Miranda’s argument that the judgment of acquittal, alternatively, should be upheld based on the prosecutorial misconduct at trial. The Court pointed out that Rule 29 refers only to the insufficiency of the evidence.
The Court recognized that, on remand, the district court was free to reconsider its denial of Miranda’s motion for new trial, despite Miranda’s failure to cross-appeal this issue. The Court expressed on view on the merits of this motion.

Elso: Lawyer Laundering Client's Drug Cash

In U.S. v. Elso, No. 04-13043 (Sept. 2, 2005), the Court (Barkett, Marcus & George b.d.) the Court affirmed money laundering convictions against a lawyer charged with laundering the drug proceeds of one of his clients. Elso went to his client’s home to pick up cash and was apprehended driving away, with the cash.
Elso was charged with violating 18 U.S.C. §§ 1956(a)(1)(B)(i) & (ii) & § 1956(h). This provision criminalizes transactions designed to conceal the location of the proceeds of unlawful activity. Elso noted that another money laundering statute, § 1957, creates an exemption for "monetary transactions" which involve the payment of attorneys’ fees, and argued that this exemption applied to § 1956 charges, and that the jury should have been so instructed. The Court rejected this argument, noting that the two statutes are worded differently. In addition, Elso was in effect asking for an instruction that he should not be convicted if he lacked the mens rea for the crime, and the Court found that the court’s instructions adequately informed the jury of this.
The Court also rejected the argument that simply picking up cash did not constitute a money laundering "transaction." "Elso’s actions of retrieving [the client’s] money from a safe in [his] home, placing it in his car, and driving away constituted a transfer, and therefore qualified as a ‘transaction.’"

Winning ear, losing appeal

In U.S. v. Winingear, No. 05-11198 (Aug. 30, 2005), the Court (Tjoflat, Dubina, Pryor) rejected the defendant’s argument that a sentence was unreasonable because it should have been subjected to a downward departure to reflect the amount of time he had already spent in state prison.
The Court first noted that Booker did not change the pre-Booker rule that a district court’s discretionary denial of a downward departure was unappealable. Here, the district court recognized its authority to depart based on time spent in state prison, but declined to do so; hence, its ruling was unappealable.
The Court also rejected Winningear’s argument that his sentence was unreasonable. The Court noted the government’s claim that, post-Booker, sentences within the Guidelines are per se reasonable, but the Court declined to reach this argument. The Court noted that the sentence imposed on Winningear was one-tenth the length of the twenty-year maximum for his mail fraud offense. Further, Winningear defrauded people $19,600, had multiple previous convictions, committed his crime while still under sentence for a previous crime, violated his bond, and threatened to murder arresting officers as he fled them. The district court took care that its sentence provided Winningear with needed medical care. "In light of the factors outlined in section 3553(a), the sentence of the district court was reasonable."

Bordon: Feeney Amendment not Ex Post Facto

In U.S. v. Bordon, No. 04-10654 (Aug. 25, 2005), the Court (Anderson, Pryor, Hill), on a third appeal following a sentening and a resentencing, affirmed the sentences.
The defendants argued that it would violate Ex Post Facto to apply the Feeney Amendment provision which required a sentencing court to apply the version of the Guidelines which was in effect at the time of the defendants’ original sentencing. Application of this version of the Guidelines would deny the defendants the benefit of a recent change in the Guidelines. The Court noted that Ex Post Facto does not guarantee favorable changes in the law but merely protects against increased penalties.
The Court also affirmed the district court’s refusal to reconsider the monetary loss associated with the offenses, pointing out that the "law of the case" doctrine precluded revisiting this issue.
The Court also rejected the argument that the seventeen month delay betwen the issuance of the mandate after the second appeal and the subsequent resentencing violated the right to a speedy trial. The Court pointed out that a large part of the delay was due to defendants’ own brieifing of complicated issues.
In a footnote, the Court noted that no Booker relief was appropriate, despite the evidence "plain error" in the sentence – the district court stated on the record it would have imposed a lesser sentence but for the mandatory guidelines – because the defendants failed to raise Booker in their initial briefs.

Moreno: Limits on 3582(c)(2) relief

In U.S. v. Moreno, No. 04-15950 (Aug. 26, 2005) the Court (Birch, Dubina & Barkett) held that a defendant was not eligible for a post- conviction reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) to invoke the benefit of Amendment 591 of the Sentencing Guidelines, or to take account, in accord with Booker, of his post-sentencing rehabilitative efforts.
Amendment 591 requires that the initial selection of the offense guideline be based only on the statute of conviction rather than on non-jury findings of actual conduct. Moreno claimed that this Amendment prohibited the district court from selecting a base offense level based on drug quantity not found by a jury. The Court rejected this argument, holding that Amendment 591 only applies to the selection of the relevant offense guideline, not to the selection of an offense level within the applicable offense guideline.
The Court also found no plain error in the district court’s determination that it lacked a jurisdictional basis to reduce Moreno’s conduct based on his post-sentencing rehabilitative conduct. The Court noted that § 3582 does not contemplate a de novo sentencing. Further, Booker does not apply to cases on collateral review: "Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. Therefore, Booker is inapplicable to § 3582(c)(2) motions."

Acosta: Interstate mailing need not involve "actual mailman"

In U.S. v. Acosta, No. 04-16480 (Aug. 24, 2005), the Court (Birch, Barkett, Wilson) held that the government satisfied the interstate jurisdictional requirement of the statute which criminalizes receipt of child pornography, and affirmed the district court’s denial of Acosta’s motion for judgment of acquittal.
After Acosta agreed by email to purchase a videotape containing child pornography, an undercover agent sent a videotape by registered mail to a post inspector in Miami. This inspector, in turn, packaged it as an express mail package to simulate its condition as if it were an actual package mailed from out of state, and then, dressed as a mail letter carrier, personally delivered the package to Acosta, who signed for the package.
The Court held that these facts established that the videotape was "mailed, shipped or transported in interstate commerce, by any means," in violation of 18 U.S.C. §§ 2252(A)(a)(%)(B) and (b)(2). The Court noted the "by any means" portion of the statute, and noted that this foreclosed Acosta’s argument that the evidence was insufficient because the case did not involve an "actual post office," or an "actual mailman."

Battle: Competent for trial

In Battle v. U.S., No. 03-14908 (Aug. 10, 2005), the Court (Edmondson, Birch & Black) (withdrawing its earlier opinion) denied § 2255 relief to a defendant sentenced to death for the killing a federal correctional officer.
The Court rejected Battle’s argument that he was incompetent to stand trial. "That Battle at times exhibited an antagonistic relationship with his lawyers over their representation of him is no indicator of incompetency. Many criminal defendants differ with their lawyers on how to best represent them." The Court further found that the district court did not error in siding with one set of experts instead of another in view of their "diametrically opposite" views. In addition, the court observed Battle throughout the trial.
The Court also rejected the argument that an insanity defense was forced upon Battle by his lawyers, finding that he at least tacitly consent to it.
The Court also rejected the argument that the indictment should have charged aggravating factors in order to be valid under Ring v. Arizona. The Court noted that Ring does not apply retroactively to cases like Battle’s.
The Court rejected Battle’s argument that the district court violated 18 U.S.C. § 3593(b), which requires the same jury which decided guilt to decide life or death, when it allowed alternate jurors to sit on the penalty jury after two jurors from the guilt phase had been dismissed for cause. The retention of alternates was a "wise" decision, and Battle suffered no prejudice because even if the alternates had less persuasive effect (for not having sat in on deliberations relating to guilt) a single vote against death would have sufficed to thwart a death sentence – and no alternate voted for life.

Yuknavich: Reduced Privacy on Probation

In U.S. v. Yuknavich, No. 04-10852 (Aug. 11, 2005), the Court (Black, Wilson, Nangle b.d.) upheld the constitutionality of a search by probation officers from the home of a convicted child sex offender.
Yuknavich was on probation following convictions on state charges of exploitation of a child and distributing obscene material. He was given a sentence of seven years probation. The terms of probation contained a number of specific prohibited activities, but did not require Yuknavich to submit to searches of his home by probation or police. During his probation, probation officers discovered child pornography at his home, and Yuknavich was convicted on federal child pornography charges. Yuknavich challenged the constitutionality of the search of his home.
Citing United States v. Knights, 534 U.S. 112 (2001), the Court found no Fourth Amendment violation. The Court noted that under Knights persons on probations have a lessened privacy interest, and that reasonable suspicion will support a police search. The Court recognized that Heath’s probation did not, unlike Knights, contain a provision expressly submitting to police searches. However, in Heath’s circumstances, on balance, even without this express provision, the search was legal. The Court noted that the search was limited to the Internet activities of Heath’s computer, and that Yuknavich was limited to work related use of his computer. His privacy expectations were further reduced because of his actions while on probation, which included violated the terms and placing himself in inappropriate situations. "For an individual, who was on probation for possessing child pornography on his computer, who admitted he had masturbated to fantasies of a young boy he had sexually assaulted, who had already twice accessed the Internet without anyone’s knowledge, to purchase a computer and not expect his probation officers to see red flags everywhere is inconceivable."
The Court found that the probation officers had reasonable suspicion to search Yuknavich’s computer at home, based on his conduct on the day in question, when he delayed ten minutes opening the door, and appeared shirtless at the door, and acted very nervous.

Heath: Judge, not Probation, must order mental health program

In U.S. v. Heath, No. 05-10175 (Aug. 12, 2005), the Court held that a sentencing court violated Article III when, as a condiction of Heath’s supervised release, it delegated to a probation officer the power to decide whether Heath had to participate in a mental health treatment program.
The Court found that the Article III violation met all four prongs of the "plain error" test. The error was "plain" under the Court’s precedent, and the decisions in other circuits, which held that requiring a defendant to participate in a mental health program is "unquestionably a judicial function." The error affected Heath’s substantial rights because absent the error, the district court, not the probation office, would have decided whether to incorporate mental health treatment in his sentence. "The fate of a defendant must rest with the district court, not the probation office." Finally the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
The Court rejected Heath’s argument that the district court had no authority to commit him, noting that probationers are often subject to limitations to which ordinary citizens are free.

Ellis: False Statement about sex undisruptive

In U.S. v. Ellis, No. 05-10150 (Aug. 5, 2005), the Court (Tjoflat, Pryor, Alarcon b.d.) the court vacated an upward sentence departure imposed a Georgia district attorney convicted of making a false statement in response to an FBI investigator’s question whether he had ever had sex with a woman with past or pending criminal charges in his judicial circuit. (Ellis falsely answered: "No.").
The defendant was charged with a number of federal crimes, including civil rights violations, arising of alleged improper contact with a criminal defendant in his circuit. However, the defendant ultimately pled guilty to just one count, the false statement count. At sentencing, the district court imposed an upward sentence departure based on "disruption of a government function," namely the postponment of other criminal cases and the adverse effect on the integrity of the district attorney’s office.
The Court found that any disruption of a governmental function was factually and legally irrelevant to the false statement to the FBI. The false statement did not cause any disruption in the local district attorney’s office. Moreover, the Guidelines only authorize a departure for conduct underlying a charge dismissed as part of a plea agreement only to the extent necessary to reflect the seriousness of the offense. Here, the disruption of a governmental function did not shed additional light on the nature of the false statement offense. Hence, the departure was invalid.
The Court remanded the case for resentencing consistent with Booker.

Bobo: No Double Jeopardy Bar

In U.S. v. Bobo, No. 04-15028 (Aug. 9, 2005), on a defendant’s interlocutory appeal, the Court held that Double Jeopardy did not bar a reprosecution of a defendant after his original case was dismissed because of the indictment was insufficient to charge the charged offenses.
After a first prosecution was dismissed on appeal on defective indictment grounds, the district court denied the defendant’s Double Jeopardy-based motion to dismiss a second prosecution for the same offenses. The defendant immediately appealed. The Court first noted that although it ordinarily lacked jurisdiction over defendants’ appeals of interlocutory orders in criminal cases, an exception exists for non-frivolous appeals of claims based on Double Jeopardy. Otherwise, if the defendant were denied an appeal and forced to go through a trial, an important part of the Double Jeopardy protection would be lost.
The defendant argued that a footnote in the Court’s original opinion effectively found that the evidence at the first trial was insufficient to sustain a conviction. The defendant argued that this finding barred a reprosecution. The Court rejected this argument because its footnote did not amount to a holding on the insufficiency of the evidence. The Court acknowledged that under its own prudential rules, it should have reached the sufficiency issue in its earlier opinion. But it held that having not done so, it would not attach Double Jeopardy consequences to its prior decision.

Campa: Cuban Spy Case Needed Another Venue

In U.S. v. Campa, No. 01-17176 (Aug. 9, 2005), the Court (Birch, Kravitch, Oakes, b.d.) held that the district court abused its discretion in denying a motion for a change of venue when the defendants, charged with being Cuban spies, were tried in Miami.
The Court stated: "Despite the district court’s numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was a unreasonable probability because of pervasive community prejudice. The entire community is sensitive to and permeated by concerns for Cuban exile population in Miami. Waves of public passion . . . flooded Miami both before and during this trial." The Court noted that the Elian Gonzalez case which overlapped with some of this case raised the community’s awareness of the concerns of the Cuban exile community. The Court pointed to news stories during the trial about the "paramilitary exile groups," and noted the "palpable" perception that these groups could harm jurors who rendered a verdict unfavorable to their views. The Court noted that one witness’ allusion to a defense’s counsel allegiance with Castro "only served to add fuel to the inflamed community passions."
The Court also noted the improper prosecutorial comments during closing arguments, and held: "Here, a new trial was mandated by the perfect storm created when the surge of community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references." [The prosecution had stated, inter alia, that the jurors would be abandoning their community unless they convicted the Cuban spies sent to "destroy the United States."].
The Court noted in closing that the Cuban-American community is a bastion of the traditional values that make America great, and said that its decision was consistent with these values.

Jordi: Terrorism departure need not transcend national boundaries

In U.S. v. Jordi, No. 04-14046 (Aug. 1, 2005), the Court (Dubina, Wilson, Coogler b.d.), on a government appeal, on the sentencing of a defendant convicted of attempted arson of abortion clinics, reversed a district court’s order finding that it had no Guideline authority to depart upward under USSG § 3A1.4, Application Note 4, for a crime involving terrorist acts intending to intimidate or coerce a civilian population.
The Court noted that even post-Booker district courts were still required to consider the Guidelines, and to do so correctly. It therefore reviewed the district court’s interpretation of the Guideline Application Note at issue.
The district court had based its decision on the statutory definition of the federal crime of terrorism, which has as an element "conduct transcending national boudnaries" – conduct which was not present in Jordi’s crime. The Court, however, found consideration of the statutory definition of this offense unnecessary to determining whether the Guidelines encouraged a departure in these circumstances. The Court instead looked to the language of the Guideline Application Note. Under this language, Jordi qualified for an upward departure. The Court therefore remanded the case for resentencing.

Hernandez: highway speeding detention not unreasonable

In U.S. v. Hernandez, No. 04-11776 (July 29, 2005), the Court (Edmondson, Dubina, Hull) held that a traffic stop did not result in an unconstitutional seizure, when the police officer became suspicious in response to questioning, and detained the defendant for 17-minutes during questioning before conducting a consensual search of the vehicle – a search which uncovered narcotics in a hidden compartment of the vehicle.
The Court noted the following circumstances which supported reasonable suspicion on the part of the officer who stopped defendant’s vehicle for speeding at 3:02 a.m. on an Alabama highway: (1) the implausible excuse for speeding (looking for a restroom for diarhea when the vehicle had just missed a rest station, (2) empty food containers in the vehicle, consistent with the practice of drug traffickers who do not want to stop for food and leave their vehicle unattended, (3) discrepancies in the stories about the trip’s length and purpose, (4) abnormal nervousness in the detainee, (5) nonstop travel at night in severe weather, (6) lack of knowledge of the trip’s destination, (7) travel between two main source cities for narcotics, (8) minimal luggage.
The Court noted that under Muelher v. Mena, 125 S.Ct. 1465 (2005), the length of a detention, not the unrelatedness of the questioning to the reason for the stop, is what makes a detention unreasonable. The Court further noted that a 17-minute stop would not, standing alone, likely be deemed too long to be unreasonable, even if, as in this case, it was justified by the evasive answers to police questioning.

Searcy: Enticing Minor to Sex Qualifies as "Crime of Violence"

In U.S. v. Searcy, No. 03-16282 (July 28, 2005), the Court (Dubina, Wilson, Lawson b.d.) affirmed the sentence of a defendant convicted of using the internet to induce a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b).
The Court rejected the challenge to the sentencing court’s use of a prior § 2422(b) conviction as a "crime of violence" for career offender enhancement purposes. The Court noted that the definition of a "crime of violence" referred to a crime involved a serious potential risk of injury. Citing the legislative history of § 2422(b) and the caselaw of other Circuits, the Court found that offenses involving sex crimes against minors always involve a risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.

Afanasjev: Unsworn indictment suffices for extradition

In Afanasjev v. Hurlburt, No. 04-13303 (July 26, 2005), the Court (Black, Hull, Hodges b.d.), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241, and upheld an order of extradition to Lithuania.
The Court rejected the argument that the unsworn 106-page Lithuanian indictment, which summarized statements made by victims and other witnesses, was insufficient evidence to establish probable cause for extradition. The Court stated that evidence presented for extradition need not be admissible at trial, pointing out that the unsworn statements of absent witnesses may be acted upon by the committing magistrate. The Court pointed out that the indictment lists the specific dates of events, the names of witnesses and victims, and the amount of money involved. The Court noted that the Magistrate compared witness statements with each fraud count, and ensured there was adequate evidence to support each count. The Court further noted that the fact of the defendants flight from Lithuania before trial on the fraud charges could also support probable cause.

Magluta: Co-Conspirator Hearsay Error

In U.S. v. Magluta, No. 03-10694 (July 27, 2005), the Court (Carnes, Cox, Mills b.d.) affirmed all convictions except one for obstruction of justice through juror bribery. The Court rejected Maglutta’s challenge to his sentence, but vacated the sentence for resentencing in light of whatever disposition occurred with regard to the now-vacated obstruction count.
The Court rejected the argument that Magluta’s prior acquittal on drug trafficking charges barred the introduction of evidence relating to these offenses at his subsequent money laundering trial. The Court noted that, for jury acquittals, the doctrine of collateral estoppel only bars reprosecution if the legal elements of the offense overlap and there is "factual identity" of the issues. Here, the elements did not overlap, because the money laundering charges did not require the government to prove that Maglutta himself engaged in drug trafficking: "As far as the money laundering statute is concerned, laundering someone else’s illegal proceeds is just as bad as laundering your own."
The Court also rejected Magluta’s attack on the sufficiency of the evidence supporting his money laundering convictions. Magluta argued that the laundered money lost its "tainted" character because, through the auspices of a government informant, it passed under the control of law enforcement. While stopping short of holding that this argument had no merit, the Court held that given the limited control of the government over the laundered funds in this case, the level of involvement was not enough to undermine the conviction.
The Court also rejected the argument that since Magluta used the proceeds of unlawful activity to pay his lawyers, here was merely spending the money, not concealing its source. However, Magluta’s use of a false name on the foreign bank account on which the checks were drawn showed that he went to "great pains" to conceal the fact that he was using drug proceeds to pay his lawyers.
The Court found merit in Magluta’s challenge to the admission in evidence, in the count for obstruction of justice through bribery of a juror, of the allegedly-bribed juror’s statement to a government informant -- two and half years after the bribery -- that he would keep quiet about the bribe. The statement had been admitted over a hearsay objection as a co-conspirator statement made in furtherance of the conspiracy. Magluta claimed that the statement was made well after the conspiracy ended. The Court noted that keeping an initial conspiracy secret is not part of the conspiracy, and concealing the source of the money when the juror made purchases was not part of the initial conspiracy either. The Court found that the error in admitting the statement was not harmless, as it directly tied Magluta to the bribe.
The Court rejected Magluta’s argument that documents were illegally seized from the trunk of a vehicle driven by Bonachea, a Magluta associate, based on an anonymous phone call to the U.S. Attorney alerting him to the existence of incriminating documents in the trunk. Bonachea’s vehicle was stopped for speeding, and a drug dog alerted for marijuana inside the car.
Assuming, without deciding, that Magluta had standing to contest the search of Bonachea’s vehicle, the Court found that the officers had probable cause to to believe that the trunk contained evidence of a crime. The anonymous tip was entitled to substantial weight, because it was correct as to several specifics relating to Bonachea, her schedule and her vehicle.
The Court found no error in the dollar drug amount imputed to Magluta for sentencing purposes. The Court pointed that any error was harmless in light of the sentencing court’s stated intention in the alternative to depart upward to reflect the "anomaly" of Magluta’s prior acquittal.
The Court also rejected the argument that Booker had undermined the Guideline rule which requires sentences to run consecutively to achieve the range set the guidelines. The Court noted that Booker had merely made the Guidelines advisory, and did not affect the validity of Guideline rule.

Taylor: Unproven complaints vs. police

In U.S. v. Taylor, No. 04-10667 (July 19, 2005), the Court (Birch, Carnes, Roney) affirmed convictions and a 322-month sentence imposed for being a felon in possession of a firearm, possesion of marihuana, and using a firearm during a drug trafficking offense.
The Court rejected the argument that the trial court should have allowed the defendant to introduce evidence of citizen complaints regarding the arresting police officer’s history of planting evidence, and brutality. The Court noted that all the incidents were "unproven." Citing U.S. v. Novaton, the Court noted that unproven allegations are not proper impeachment evidence. The Court further noted that the defendant had not proferred testimony of witnesses who could testify about specific misconduct. Moreover, brutality complaints were irrelevant to the drug and gun possession charges against Taylor.
The Court also rejected a challenge to the exclusion of background evidence concerning Taylor’s homelessness, finding the admission of such evidence within the broad discretion of the district court.
The Court further rejected Taylor’s complaint that he was not provided with discovery of a jailhouse’s companion’s testimony concerning Taylor’s confession of the crime. The Court pointed out that Fed. R. Crim. P. 16 only requires disclosure of witness statements given to the government under interrogation. Here, the statement was not given to the government, and it was not made in response to interrogation.
The Court also rejected the argument that introduction of Taylor’s prior gun conviction violated Rule 404(b). The Court found that this evidence, subject to the court’s limiting instruction, was admissible on the gun counts against Taylor.
The Court found no plain error under Booker in the sentence, noting that there was no evidence a lesser sentence would have been imposed had the sentencing court treated the Guidelines as advisory, not mandatory.

Holt: no writ of audita querela

In U.S. v. Holt, No. 04-15848 (July 19, 2005), the Court (Tjoflat, Birch, Dubina) denied an inmate’s Booker-based writ of audita querela which challenged a sentence.
At common law, a writ of audita querela – Latin for "the complaint having been heard" – allowed a challenge to a judgment after it was rendered because of some defense or discharge arising afterward. The Court noted, however, that such common law writs only survive the habeas corpus statutes to the extent that they fill gaps in these statutes. Here, there was no gap to be filed, because § 2255 provides a specific remedy for Holt’s type of challenge, namely a constitutional attack on his sentence. Therefore, no writ of audita querela could be entertained.
Further, because Holt had previously filed a first § 2255 motion, his current proceeding, converted into a § 2255 motion, was deemed "second and successive" under the AEDPA. As such, it had to be dismissed because Holt failed to obtain the requisite authorization from the court of appeals to initiate a second or successive § 2255 proceeding.

Smith: Applying Levy

In U.S. v. Smith, No. 03-15299 (July 18, 2005), the Court (Hull, Marcus, Hancock b.d.), after a remand from the Supreme Court for further consideration in light of Booker, applied its Levy rule and held that Smith was not entitled to raise a Booker challenge because he failed to raise the issue in his initial brief on direct appeal. The Court explained that the Supreme Court had applied its own prudential rule in Pasquantino in declining to consider a Booker issue, because the issue was not raised in the Court of Appeals or in a brief in the Supreme Court. Further, the Court noted that it was not "unduly harsh" or "overly burdensome" to require counsel to raise issues in their initial brief, even issues that appear foreclosed by circuit precedent.

Conklin: No habeas relief on "new evidence"

In In re Conklin, No. 05-13817 (July 12, 2005), the Court (Edmondson, Barkett, Wilson) (2-1, Barkett, J., dissenting), denied the habeas petition of a Georgia inmate facing execution.
Conklin sought to justify bringing a second habeas petition on the ground that "new evidence," in the form of a medical examiner’s opinion, was suppressed at his trial. The Court rejected this argument, finding that even in light of this evidence Conklin could not have met AEDPA’s stringent test of showing that no reasonable factfinder would have imposed the death penalty. The Court further noted that Conklin could in fact have presented this "new evidence" in his first habeas petition.
The Court expressed "misgivings" about the trial court’s constraints on the defense’s ability to prepare for trial and to obtain an expert witness, but found that it could not rule for Conklin without further guidance from the Supreme Court on the scope of a defendant’s Sixth Amendment right to expert assistance in putting on a defense of self-defense.

White: Booker inapplicable to revocation supervised release

In U.S. v. White, No. 04-13442 (July 14, 2005), the Court (Carnes, Marcus, Fay) rejected a Booker-based challenge to a sentence imposed for revocation of supervised release.
The Court first rejected a Booker-challenge to the district court’s November 1999 imposition of a sentence of supervised release. The Court noted that U.S. v. Almand, 992 F.2d 316 (11th Cir. 1993) precluded a challenge to an underlying sentence in a revocation context, and further noted that Varela v. U.S., 400 F.3d 864 (11th Cir. 2005) precluded Booker’s application in a section 2255 context.
The Court noted that the Supreme Court has yet to address whether Booker applied in supervised release revocation proceedings. The Court determined that even if Booker applied, there was no constitutional Booker error, because White admitted the facts that were used to enhance his sentence. Further, there was no Booker statutory error, because the district court did not treat the Guideline policy statements for revocation proceedings as binding. Moreover, in the absence of a Supreme Court case on point, any error could not be "plain."

Rivers fails Johnson habeas diligence test

In Rivers v. U.S., No. 03-11734 (July 14, 2005), the Court (Anderson, Barkett, Wilson), following a remand from the Supreme Court for further consideration of its denial of habeas relief in light of Johnson v. U.S., 125 S.Ct. 1571 (2005), reaffirmed its prior decision.
The Court recognized that Johnson had undermined some of the prior basis for its denial of habeas relief under the AEDPA statute of limitations. The Court noted, however, that Johnson required habeas petitioners who challenged their sentence on the basis of a vacatur of a state conviction had to show "due diligence" in obtaining the vacatur. Here, Rivers did not seek vacatur of his prior state conviction until more than four years after entry of the federal sentence which had been enhanced on the basis of this (now-vacated) prior state conviction. This precluded him from obtaining federal habeas relief.

McNair: no habeas relief based on bible in jury room

In McNair v. Campbell, No. 04-11400 (July 13, 2005), the Court denied habeas relief to an Alabama inmate sentenced to death for a 1990 murder.
The Court held that the defendant was not entitled to an evidentiary hearing concerning his ineffective assistance of counsel claim, and that the trial court erred in relying on evidence developed at its federal evidentiary hearing in support of its decision granting habeas relief. The Court pointed out that the defendant had not been "diligent" in his post-conviction proceedings in state court in developing evidence in support of an ineffectiveness claim. Consequently, he was now barred under 28 U.S.C. sec. 2254(e)(2) from attempting to develop this evidence later, in federal court.
The Court also rejected McNair’s challenge to his conviction based on the fact that the jury took a Bible back to the jury room. The Court found that this claim was not preserved in state court, and even had it been, it would not have entitled him to prevail in light of the strong evidence against him. The Court rejected the argument that the State had waived its reliance on the procedural bar, noting that under AEDPA, an affirmative waiver was required – which did not occur here.
Finally, the Court rejected the Batson challenge to the jury selection, finding no impropriety in the striking of individual jurors, and no evidence that an alleged practice by the local prosecutor of systematically striking blacks affected McNair’s jury selection.