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."
Thursday, September 29, 2005
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.
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.
Wednesday, September 28, 2005
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.
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.
Monday, September 26, 2005
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.
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.
Friday, September 16, 2005
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.
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.
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.
Friday, September 09, 2005
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.’"
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.’"
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