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.