In U.S. v. Grant, No. 03-13406 (Jan. 27, 2005), the Court (Carnes, Hull, Hill) held that the weight of LSD, for which the pure LSD weight was 0.1263 grams, and the weight with the water in which it was contained was 103.7 grams (or the equivalent of 2526 dosage units or "hits"), must, for sentencing computation purposes, include the water within which it is contained. The Court rejected the argument that the defendant should have been sentenced on the basis of the pure weight of the LSD.
Citing Chapman v. U.S., 111 S.Ct. 1919 (1991), the Court held that the weight of the mixture is the applicable weight for calcuting LSD quantities under the drug statutes. Accordingly, Grant, who admitted at his plea colloquy to possessing 10 grams of LSD, was subject to the mandatory minimum penalty of 120 months for LSD possession. The Court found no meaningful difference between the blotter paper carrier at issue in Chapman and the water used by Grant.
The Court rejected Grant’s argument that, at a resentencing after a successful appeal of a sentence in which he received a downward departure below the otherwise applicable mandatory minimum, the mandatory minimum could no longer be a relevant consideration for his sentence. The Court held that the resentencing "wiped the slate clean." The Court noted that Grant’s new sentence was half the mandatory minimum, and that the district court was free to reconstruct the sentence as it did, based on the mandatory minimum and a new downward departure.
Monday, January 31, 2005
Wednesday, January 26, 2005
2255 claim can be waived in plea colloquy
In Williams v. U.S., No. 04-11704 (Jan. 24, 2005), the Court held that a defendant whose plea agremeent provided for a waiver of his right to challenge his sentence "directly or collaterally" had waived his right to seek § 2255 relief by alleging ineffective assistance of counsel at sentencing. The Court pointed out that the district court specifically questioned Williams during the plea colloquy about the appeal waiver. In these circumstances, Williams knowingly waived his right to challenge his sentence under § 2255, and accordingly § 2255 relief was properly denied by the district court.
Booker appeal rights are waivable
In U.S. v. Rubbo, No. 04-10874 (Jan. 21, 2005), the Court (Carnes, Cox & Mills b.d.) held that an exception to a defendant’s appeal waiver which permitted an appeal if the sentence exceeded the "maximum permitted by statute" did not allow a challenge to a sentence on the basis that it exceeded the "statutory maximum" contemplated by the Supreme Court’s Apprendi/Blakely/Booker decisions.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
The Court found that the term "maximum permitted by statute" as used in the plea agreement had a different meaning than the term "statutory maximum" used in the Supreme Court’s recent Sixth Amendment jurisprudence. The plea agreement term referred simply to the "upper limit of punishment that Congress has legislatively specified for violation of a statute," whereas the term "statutory maximum," while seemingly similar, refers to the meaning referenced in the Supreme Court cases. The Court noted that similar words can take on different meanings in different contexts. The Court further noted that the right to appeal a sentence based on Apprendi/Booker can be waived, and held that the defendant did so in her plea agreement.
Cell phone call can be interstate nexus
In U.S. v. Drury, No. 02-12924 (Jan. 18, 2005), the Court (Barkett, Marcus, Alarcon b.d.), considering the case for second time after the grant of en banc rehearing was vacated, affirmed a conviction for violating the federal murder-for-hire statute, and for possessing a firearm in connection with a crime of violence, in violation of 18 U.S.C. §§ 1958(a), 924(c).
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
Drury’s conviction arose out of four cell phone calls he placed in which he planned the killing of his wife. The recipient of the phone calls was located, like Drury, in Georgia, but the cell phone switching system caused the call to go through Jacksonville, Florida, i.e. interstate. The Court found that this interstae nexus sufficed to establish the murder for hire statute’s interstate nexus. The Court rejected the argument that no interstate nexus could exist since Drury had no idea his cell phone would be routed out of state, pointing out that intent to place an interstate call in not a requirement of the statute and for all Drury knew the recipient of his cell phone call could have been out of state at the time of the call.
The Court also rejected Drury’s challenge to the jury instruction which withdrew from the jury the element of the interstate nexus. The Court noted the uncontroverted evidence that the phone calls went out of state, and, citing Neder v. U.S., 527 U.S. 1 (1999), held that the failure to instruct the jury on an essential element of the statute was harmless error.
The Court found no abuse of discretion in the district court’s preclusion of evidence of the truthful character of the defendant, finding that the prosecutor’s comments about the defendant’s credibility did not rise to the level of an “attack” under Fed. R. Evid. 608(a)(2).
The Court also found no abuse of discretion in the trial court’s exclusion of a prior consistent statement Drury allegedly made to his son regarding the “role-playing exercise” that was going on when Drury was arranging for his wife’s murder. The Court again found that Drury’s credibility had no been attacked to the point where a prior consistent statement was admissible, and further noted that the statement was not offered, as the rule requires, to rebut a claim of recent fabrication. The Court also noted that the statement was made at a time when the defendant already had a motive to fabricate a story for his son.
Finally, the Court found no error in the trial court’s refusal to give requested jury instructions regarding credibility, finding one “superfluous” and the other unnecessary to Drury’s presentation of an effective defense.
Tuesday, January 11, 2005
Conspiring to launder money requires no overt act
In Whitfield v. U.S., No. 03-1293 (Jan. 11, 2005), the Supreme Court held that proof of a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) does not require proof of an overt act in furtherance of the conspiracy.
The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense.
The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation.
Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.
The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense.
The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation.
Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.
Highway travel is Interstate Commerce
In U.S. v. Ballinger, No. 01-14872 (Jan. 10, 2005), the Court (en banc) held that 18 U.S.C. § 247, which criminalizes destruction of religious property on account of its religious character, is not an invalid exercise of Congress’ power under the Commerce Clause of the Constitution.
Ballinger was an arsonist who travelled on the interstate highways through 4 States for no other purpose than to burn churches to the ground. Eleven churches in 4 States were destroyed during the arson spree.
The Court found that it need not reach the issue whether the conviction was valid under Congress' Commerce Clause power to regulate intrastate activities which substantially affect interstate commerce, because the statute fell squarely within the other aspects of the Commerce Clause power, namely the power to regulate channels or instrumentalities of interstate commerce. The Court rejected the argument that arson is purely local activity, pointing out that Ballinger used the interstate highways, and that Congress can prohibit the use of interstate channels or instrumentalities to promote the "spread of any evil" from State to State. The Court pointed out that travel from State to State was essential to Ballinger’s crime. The Court pointed out that the statute contained a jurisdictional requirement that an arson affect interstate commerce, and that the statute therefore did not merely bar local intrastate arson.
The Court rejected the argument that interstate travel before the arson was irrelevant to the question of whether the arson was connected to interstate commerce. The Court construed the "in commerce" language of the statute’s jurisdictional requirement to refer to the use of the channels or instrumentalities of interstate commerce. The Court stated that the "in commerce" language reaches less commerce than "affecting commerce" language. But the Court found that the "in commerce" language covered the act of traveling interstate to commit arson. The Court pointed out that similarly-worded statutes prohibiting firearm possession had been upheld even though the only jurisdictional nexus was that the gun had at some point in time travelled interstate.
Ballinger was an arsonist who travelled on the interstate highways through 4 States for no other purpose than to burn churches to the ground. Eleven churches in 4 States were destroyed during the arson spree.
The Court found that it need not reach the issue whether the conviction was valid under Congress' Commerce Clause power to regulate intrastate activities which substantially affect interstate commerce, because the statute fell squarely within the other aspects of the Commerce Clause power, namely the power to regulate channels or instrumentalities of interstate commerce. The Court rejected the argument that arson is purely local activity, pointing out that Ballinger used the interstate highways, and that Congress can prohibit the use of interstate channels or instrumentalities to promote the "spread of any evil" from State to State. The Court pointed out that travel from State to State was essential to Ballinger’s crime. The Court pointed out that the statute contained a jurisdictional requirement that an arson affect interstate commerce, and that the statute therefore did not merely bar local intrastate arson.
The Court rejected the argument that interstate travel before the arson was irrelevant to the question of whether the arson was connected to interstate commerce. The Court construed the "in commerce" language of the statute’s jurisdictional requirement to refer to the use of the channels or instrumentalities of interstate commerce. The Court stated that the "in commerce" language reaches less commerce than "affecting commerce" language. But the Court found that the "in commerce" language covered the act of traveling interstate to commit arson. The Court pointed out that similarly-worded statutes prohibiting firearm possession had been upheld even though the only jurisdictional nexus was that the gun had at some point in time travelled interstate.
Thursday, January 06, 2005
Non-adverse conflict of interest
In Hunter v. Dep’t of Corrections, No. 04-13574 (Jan. 5, 2005), the Court (Carnes, Barkett, Hull) affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court rejected the argument that Hunter’s trial counsel labored under a conflict of interest because members of his office, the Public Defender’s Office for Volusia County, had represented the prosecution’s lead witness in unrelated earlier criminal proceedings, and had failed to cross-examine this witness about is prior criminal record. The Court found no basis for overturning the state court determinations that trial counsel was unaware of the witness’ criminal history. The Court also found that Hunter failed to show that his counsel’s representation was adversely affected by the conflict of interest. The Court noted no evidence of an "actual" conflict of interest. The Court also found no evidence of an adverse effect on counsel’s performance. The Court further noted that even if its own precedents supported Hunter’s claim, under habeas law a state determination is deficient only when it is at odds with Supreme Court precedent, which was not the case here.
The Court also rejected the argument that counsel was deficient for failing to introduce photographs of the defendants after the murder, wearing a different shirt than the one witnesses ascribed to the shooter. The Court noted that all the photographs, taken together, could have hurt the defense because they showed that the defendant might have changed shirts after the murder.
The Court rejected the argument that Hunter’s trial counsel labored under a conflict of interest because members of his office, the Public Defender’s Office for Volusia County, had represented the prosecution’s lead witness in unrelated earlier criminal proceedings, and had failed to cross-examine this witness about is prior criminal record. The Court found no basis for overturning the state court determinations that trial counsel was unaware of the witness’ criminal history. The Court also found that Hunter failed to show that his counsel’s representation was adversely affected by the conflict of interest. The Court noted no evidence of an "actual" conflict of interest. The Court also found no evidence of an adverse effect on counsel’s performance. The Court further noted that even if its own precedents supported Hunter’s claim, under habeas law a state determination is deficient only when it is at odds with Supreme Court precedent, which was not the case here.
The Court also rejected the argument that counsel was deficient for failing to introduce photographs of the defendants after the murder, wearing a different shirt than the one witnesses ascribed to the shooter. The Court noted that all the photographs, taken together, could have hurt the defense because they showed that the defendant might have changed shirts after the murder.
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