In U.S. v. Thomas, No. 05-14151 (Apr. 26, 2006), the Court rejected the defendant’s Booker/Blakely-based ex post facto challenge to his sentence, as well as a Fifth Amendment Indictm Clause argument.
The defendant, who committed his offense pre-Booker, when the Guidelines were not yet advisory, claimed that the Guidelines could not be applied in an advisory way to his conduct without violating ex post facto principles. Rejecting this argument, the Court found no ex post facto because, at the time Thomas committed his crime, the United States Code specified a statutory maximum of life imprisonment for his crime, and the Guidelines informed the defendant that the sentencing judge could engage in fact-finding and could impose a possible life sentence. Thomas said he understood this during the plea colloquy. Thus, the Court found no merit in the argument that Thomas relied on the constitutional implication of Blakely: both at the time he committed his crime and at the plea colloquy, Thomas was on notice that he could receive a sentence within the statutory range based on judicial factfinding that went beyond the jury’s verdict or the facts he admitted in his plea colloquy.
The Court was also unpersuaded by the argument that all facts used to enhance Thomas’s sentence should have been alleged in the indictment. The Court pointed out that under Booker only the use of facts under a mandatory guidelines system created constitutional problems. Here, the district court enhanced Thomas’ sentence based on advisory guidelines.
Finally, the Court rejected Thomas’ challenge to the reasonableness of his sentence. The Court found that the 121-month sentence for being the ring-leader in an attempted robbery was reasonable, and noted that the district court imposed a low-end Guideline sentence based on Thomas’ remorse.
Wednesday, April 26, 2006
Tuesday, April 25, 2006
Ingram: Speedy Trial Violation
In U.S. v. Ingram, No. 05-10866 (Apr. 25, 2006), the Court (Black, Barkett, Cox) reversed the conviction and remanded with instructions to dismiss the indictment, finding that the delay of over two years between indictment and trial deprived Ingram of his Sixth Amendment right to a fair trial.
In February 2000, Ingram, a convicted felon, while purchasing a firearm from a Greenacres City Pawn Shop, answered "no" to a question on a BATF form which asked whether he had ever been convicted of a felony. In October 2002, the government indicted Ingram for making a false statement to a firearms dealer in connection with an attempted acquisition of a firearm. The indictment was sealed, and a warrant was issued for Ingram’s address.
Between October 2002 and July 2004, the ATF agent made "minimal efforts" to contact Ingram. When Ingram was finally contacted and told he was indicted, he agreed to surrender in court; he filed a motion to dismiss the indictment on Speedy Trial grounds.
The Court noted that under Barker v. Wingo, 407 U.S. 514 (1972) four speedy trial factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy trial right; and (4) prejudice to the defendant. If, all three first factors weigh "heavily" against the government, the defendant need not show actual prejudice.
Here, the more than two-year delay satisfied the first factor.
The Court rejected the district court’s conclusion that Ingram contributed to the delay by making himself difficult to locate. The Court pointed out that Ingram was never aware that he was indicted during the two-year period. He therefore could not having been evading prosecution. The fact that his phone numbers changed also did not show this: "There are many innocent reasons why someone’s phone numbers might change over the course of two and one-half years." The Court found that the delay was caused by the government.
Finally, the defendant did assert his rights.
The Court found that all of these three factors weighed "heavily" in Ingram’s favor, pointing further to the delay between the date of the commission of the offense and the indictment date, the fact that this was not a complex case, and that the ATF agent had knowledge of Ingram’s whereabouts. Consequently, Ingram did not have to show "actual prejudice" from delay in order to establish a Speedy Trial violation.
In February 2000, Ingram, a convicted felon, while purchasing a firearm from a Greenacres City Pawn Shop, answered "no" to a question on a BATF form which asked whether he had ever been convicted of a felony. In October 2002, the government indicted Ingram for making a false statement to a firearms dealer in connection with an attempted acquisition of a firearm. The indictment was sealed, and a warrant was issued for Ingram’s address.
Between October 2002 and July 2004, the ATF agent made "minimal efforts" to contact Ingram. When Ingram was finally contacted and told he was indicted, he agreed to surrender in court; he filed a motion to dismiss the indictment on Speedy Trial grounds.
The Court noted that under Barker v. Wingo, 407 U.S. 514 (1972) four speedy trial factors are considered: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the speedy trial right; and (4) prejudice to the defendant. If, all three first factors weigh "heavily" against the government, the defendant need not show actual prejudice.
Here, the more than two-year delay satisfied the first factor.
The Court rejected the district court’s conclusion that Ingram contributed to the delay by making himself difficult to locate. The Court pointed out that Ingram was never aware that he was indicted during the two-year period. He therefore could not having been evading prosecution. The fact that his phone numbers changed also did not show this: "There are many innocent reasons why someone’s phone numbers might change over the course of two and one-half years." The Court found that the delay was caused by the government.
Finally, the defendant did assert his rights.
The Court found that all of these three factors weighed "heavily" in Ingram’s favor, pointing further to the delay between the date of the commission of the offense and the indictment date, the fact that this was not a complex case, and that the ATF agent had knowledge of Ingram’s whereabouts. Consequently, Ingram did not have to show "actual prejudice" from delay in order to establish a Speedy Trial violation.
Underwood: Co-Conspirator statements not "testimonial" under Crawford
In U.S. v. Underwood, No. 04-15750 (Apr. 25, 2006), the Court, on plain error review, rejected the argument that 21 U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court also rejected a plain error Booker challenge to the sentence. The Court also held that the admission of co-conspirator statements does not violate Crawford’s Confrontation Clause holding.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
Underwood argued that Booker error existed based on the fact that the district court applied then-mandatory guidelines, and imposed a sentence at the low-end of the sentence. The Court found that this did not satisfy Underwood’s burden of showing that the sentence would have been lower under an advisory guidelines system.
The defendant argued that § 841 did not conform with Apprendi because it contained sentencing factors, which direct judges to make fact-findings. The Court rejected this argument, noting that an Apprendi issue only arises if a judge makes findings which cause a sentence to go above the applicable statutory maximum. Here, Underwood’s 135 month sentence was well below the statutory maximum of life.
At trial, the district court admitted, over Crawford objections, recorded statements which Underwood’s brother made during the unlawful drug transactions. The Court found that these statements were made by a co-conspirator, and therefore admissible under FRE 801(d)(2)(E). The Court rejected Underwood’s Crawford-based Confrontation Clause objection, finding that these statements were not "testimonial." The Court noted that Confrontation Clause rights protect only "testimonial" statements, i.e., the equivalent of pretrial statements that the declarant would reasonably expect to be used prosecutorially. Here, the incriminating statements caught on tape were not made to police with a view to prosecution; indeed, Underwood’s brother would likely not have said anything had he known he was dealing with a police informant, and that his statements were being recorded.
Monday, April 24, 2006
Arbane: Insufficient evidence to import cocaine into U.S.
In U.S. v. Arbane, No 04-15277 (Apr. 21, 2006) (2-1, Wilson, J. dissenting), the Court held that insufficient evidence supported a conviction of defendant convicted of conspiring to import cocaine into the United States.
The Court first rejected the argument that there was no jurisdiction to prosecute Arbane, because he was arrested, without an extradition process, when his flight from Ecuador to Iran stopped in Houston, Texas, on a stopover. Citing U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), the Court noted that the extradition treaty did not divest U.S. Courts of jurisdiction when a defendant’s presence in the United States was obtained otherwise than through a treaty’s extradition process.
The Court, however, found insufficient evidence. The Court noted that in a drug trafficking conspiracy the government had to prove an agreement to import drugs into the U.S. with someone other than a government informant. Here, there was evidence of another co-conspirator, but no evidence that this person, though aware of the existence of drugs, knew that the purpose of the scheme was to import drugs into the U.S. Hence, the evidence was insufficient. The Court pointed out that in a drug importation prosecution, the destination of the drugs (the U.S.) was an essential element of the crime, particularly when, as here, all of the conduct took place in Ecuador, outside the United States, and not even on the High Seas on the way to the United States. "There can be no meeting of the minds if only one mind contains knowledge of the object of the agreement," the Court noted.
The Court first rejected the argument that there was no jurisdiction to prosecute Arbane, because he was arrested, without an extradition process, when his flight from Ecuador to Iran stopped in Houston, Texas, on a stopover. Citing U.S. v. Alvarez-Machain, 504 U.S. 655 (1992), the Court noted that the extradition treaty did not divest U.S. Courts of jurisdiction when a defendant’s presence in the United States was obtained otherwise than through a treaty’s extradition process.
The Court, however, found insufficient evidence. The Court noted that in a drug trafficking conspiracy the government had to prove an agreement to import drugs into the U.S. with someone other than a government informant. Here, there was evidence of another co-conspirator, but no evidence that this person, though aware of the existence of drugs, knew that the purpose of the scheme was to import drugs into the U.S. Hence, the evidence was insufficient. The Court pointed out that in a drug importation prosecution, the destination of the drugs (the U.S.) was an essential element of the crime, particularly when, as here, all of the conduct took place in Ecuador, outside the United States, and not even on the High Seas on the way to the United States. "There can be no meeting of the minds if only one mind contains knowledge of the object of the agreement," the Court noted.
Maxwell: Child Pornography Statute Constitutional
In U.S. v. Maxwell, No. 03-14326 (Apr. 20, 2006), the Court reversed its prior decision, 386 F.3d 1042, and held, in light of the Supreme Court’s intervening decision in Gonzalez v. Raich, 125 S.Ct. 2195 (2005), that the child pornography possession statute, 18 U.S.C. § 2252A, was not unconstitutional as applied to Maxwell.
The Court pointed out that in Raich, the Supreme Court held that Congress did not exceed its Commerce Clause authority when it prohibited the local cultivation of marijuana. The Court noted that in Raich, the Supreme Court held that Congress can regulate purely intrastate activity that is not itself "commercial" if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The Court further noted that Raich involved the comprehensive regulation of an economic activity. Based on Raich, the Court found its prior analysis of the child pornography statute to be incorrect. As with marijuana, Congress had moved to comprehensively regulate child pornography. Congress sought to "eliminate the entire market for child pornography."
The Court noted that its task was not to determine whether Congress had made particularized findings regarding whether conduct affected interstate commerce. Rather, the question was whether "the cumulative effect of the conduct by Maxwell and his ilk would substantially affect interstate commerce." Congress could rationally conclude that it would.
The Court pointed out that in Raich, the Supreme Court held that Congress did not exceed its Commerce Clause authority when it prohibited the local cultivation of marijuana. The Court noted that in Raich, the Supreme Court held that Congress can regulate purely intrastate activity that is not itself "commercial" if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The Court further noted that Raich involved the comprehensive regulation of an economic activity. Based on Raich, the Court found its prior analysis of the child pornography statute to be incorrect. As with marijuana, Congress had moved to comprehensively regulate child pornography. Congress sought to "eliminate the entire market for child pornography."
The Court noted that its task was not to determine whether Congress had made particularized findings regarding whether conduct affected interstate commerce. Rather, the question was whether "the cumulative effect of the conduct by Maxwell and his ilk would substantially affect interstate commerce." Congress could rationally conclude that it would.
Tuesday, April 18, 2006
Bashir: No immunity for warrantless search of home
In Bashir v. Rockdale County, Ga., No. 15-13030 (Apr. 14, 2006), the Court reversed a grant of summary judgment based on qualified immunity to a Georgia Deputy Sheriff.
Bashir, a resident of Rockdale County, Ga., returned to his home one night to find several police cars outside his home. The police had just arrested his wife and two sons on "disorderly conduct" charges. As he spoke with a sergeant, Bashir saw his seven-year-old son crying, unattended in the carport. He picked up his son, and walked inside the house, followed by a deputy sheriff, who had no warrant, and who did not ask permission to enter. Bashir told police "if y’all didn’t do this thing right I am suing the hell out of everybody." Police then rushed into the ome, grabbed Bashir, threw him to the floor, handcuffed him and took him to the jail, where he spent the night.
The Court noted that the Fourth Amendment makes a warrantless arrest in a home unconstitutional unless the the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant. It was undisputed that the Deputy Sheriff had no warrant. The Court concluded that he did not have consent to enter. And the Court rejected the argument that the wife’s arrest twenty minutes earlier created exigent circumstances justifying police entry into the home. The Court further found that these findings were based on clearly established law. The Deputy Sheriff, therefore, was not entitled to qualified immunity to Bashir’s suit under § 1983.
The Court, however, affirmed the dismissal of a separate claim of "excessive force." The Court noted that "excessive force" can be the basis for a separate suit, but found that in this case it was predicated solely on the officer’s lack of authority to make an arrest, and could not go forward.
The Court also affirmed dismissal of state law claims, finding no evidence of the requisite "actual malice" to support such claims.
Bashir, a resident of Rockdale County, Ga., returned to his home one night to find several police cars outside his home. The police had just arrested his wife and two sons on "disorderly conduct" charges. As he spoke with a sergeant, Bashir saw his seven-year-old son crying, unattended in the carport. He picked up his son, and walked inside the house, followed by a deputy sheriff, who had no warrant, and who did not ask permission to enter. Bashir told police "if y’all didn’t do this thing right I am suing the hell out of everybody." Police then rushed into the ome, grabbed Bashir, threw him to the floor, handcuffed him and took him to the jail, where he spent the night.
The Court noted that the Fourth Amendment makes a warrantless arrest in a home unconstitutional unless the the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant. It was undisputed that the Deputy Sheriff had no warrant. The Court concluded that he did not have consent to enter. And the Court rejected the argument that the wife’s arrest twenty minutes earlier created exigent circumstances justifying police entry into the home. The Court further found that these findings were based on clearly established law. The Deputy Sheriff, therefore, was not entitled to qualified immunity to Bashir’s suit under § 1983.
The Court, however, affirmed the dismissal of a separate claim of "excessive force." The Court noted that "excessive force" can be the basis for a separate suit, but found that in this case it was predicated solely on the officer’s lack of authority to make an arrest, and could not go forward.
The Court also affirmed dismissal of state law claims, finding no evidence of the requisite "actual malice" to support such claims.
Monday, April 17, 2006
Williams: Booker Inapplicable to Restitution
In U.S. v. Williams, No. 04-15117 (Apr. 13, 2006), the Court affirmed a doctor’s convictions and sentence for unlawfully dispensing controlled substances.
The Court rejected the argument that expert testimony regarding the ordinary standard of care for dispensing controlled substances should not have been admitted. Noting that the testimony was not objected to at trial, the Court pointed out that this issues was only reviewable for "plain error." The Court found no plain error as no authority existed in any Circuit holding that evidence of noncompliance with the civil standard of care is inadmissible to prove that the action at issue was also outside the course of professional medical practice.
The Court also rejected Williams’ challenge to the jury instruction regarding the standard of care, because it failed to introduce any objective standard by which a physician’s prescribing behavior can be judged. Williams had urged that his "good faith" was a basis for a not guilty verdict. The Court noted that "good faith" did not suffice as a defense to this provision of the Controlled Substances Act.
The Court rejected Williams’ argument that Booker applied to the restitution portion of his sentence. Joining all other Circuits to have addressed the issue, the Court held that the amount of restitution can be imposed by a judge, without jury findings.
The Court rejected the argument that expert testimony regarding the ordinary standard of care for dispensing controlled substances should not have been admitted. Noting that the testimony was not objected to at trial, the Court pointed out that this issues was only reviewable for "plain error." The Court found no plain error as no authority existed in any Circuit holding that evidence of noncompliance with the civil standard of care is inadmissible to prove that the action at issue was also outside the course of professional medical practice.
The Court also rejected Williams’ challenge to the jury instruction regarding the standard of care, because it failed to introduce any objective standard by which a physician’s prescribing behavior can be judged. Williams had urged that his "good faith" was a basis for a not guilty verdict. The Court noted that "good faith" did not suffice as a defense to this provision of the Controlled Substances Act.
The Court rejected Williams’ argument that Booker applied to the restitution portion of his sentence. Joining all other Circuits to have addressed the issue, the Court held that the amount of restitution can be imposed by a judge, without jury findings.
Thursday, April 13, 2006
Coloma: Concurrent sentence can credit time served prospectively, not retrospectively
In Colomba v. Holder, No. 05-13728 (Apr. 11, 2006), the Court affirmed the denial of habeas relief under 28 U.S.C. § 2241 to an inmate who challenged the Bureau of Prisons (BOP) determination regarding a concurrent sentence. BOP found that the concurrent sentence did not begin to run on the date that the first sentence was imposed, but on the date Colomba began serving his second sentence.
Colomba was convicted for two related drug trafficking offenses in two separate prosecutions. The second conviction ended with the imposition of a sentence to run concurrently with the first, which had been imposed three years earlier. Colomba argued that the sentencing court in the second case intended for the time to run from the date, three years earlier, when he began serving the first sentence, and sought an order directing BOP to so calculate his sentence.
Rejecting the argument, the Court pointed out that the concurrent sentence, as with all sentences, began to run on the date the defendant was received in custody. 18 U.S.C. § 3585. Thus, the concurrent sentence did not begin on the date of the first sentence, but on the date Coloma was received in custody for the second, concurrent sentence. The Court recognized that under USSG § 5G1.3, the sentencing court can shorten a concurrent sentence to reflect time already served. But the Guideline commentary makes clear that a sentence cannot begin prior to the date it is pronounced. Because the time for filing a § 2255 petition challenging the concurrent sentence itself had expired, the Court "presumed" that the sentencing court properly applied § 5G1.3, and deducted prospectively time from the concurrent sentence. The Court recognized that the Third Circuit held that § 5G1.3 allows a sentencing court to run a concurrent sentence "retrospectively," but held that no such authority exists.
Colomba was convicted for two related drug trafficking offenses in two separate prosecutions. The second conviction ended with the imposition of a sentence to run concurrently with the first, which had been imposed three years earlier. Colomba argued that the sentencing court in the second case intended for the time to run from the date, three years earlier, when he began serving the first sentence, and sought an order directing BOP to so calculate his sentence.
Rejecting the argument, the Court pointed out that the concurrent sentence, as with all sentences, began to run on the date the defendant was received in custody. 18 U.S.C. § 3585. Thus, the concurrent sentence did not begin on the date of the first sentence, but on the date Coloma was received in custody for the second, concurrent sentence. The Court recognized that under USSG § 5G1.3, the sentencing court can shorten a concurrent sentence to reflect time already served. But the Guideline commentary makes clear that a sentence cannot begin prior to the date it is pronounced. Because the time for filing a § 2255 petition challenging the concurrent sentence itself had expired, the Court "presumed" that the sentencing court properly applied § 5G1.3, and deducted prospectively time from the concurrent sentence. The Court recognized that the Third Circuit held that § 5G1.3 allows a sentencing court to run a concurrent sentence "retrospectively," but held that no such authority exists.
Friday, April 07, 2006
Williams: "Pandering" Child Porn Provision Struck Down
In U.S. v. Williams, No. 04-15128 (April 6, 2006), the Court (Barkett, Wilson, Reavley b.d.) struck down as violative of the First Amendment the "pandering" child pornography provision of the Protect Act. The Court affirmed Williams’ conviction for possessing child pornography, and rejected a Booker challenge to the 60-month sentence imposed for that conviction.
The pandering provision of the Protect Act criminalized promoting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is or contains [child pornography]." 18 U.S.C. § 2252A(a)(3)(B). The Court found that this provision was overbroad. First, because the provision encompassed "purported" child pornography, or material that reflects a belief that it contains such pornography, the provision swept not just "real" child pornography, but legal child erotica. Further, by having "beliefs" trigger criminal liability, the law effectively focused on thoughts. The Court recognized that, under Supreme Court caselaw, pandering might be probative evidence of intent to unlawfully traffic in child pornography, but held that pandering alone could not, as the statute was written, be the basis for an independent crime.
The Court found Congress’ legislative findings inadequate to sustain the pandering law. The rationale of suppressing the market for child pornography had already been rejected by the Supreme Court in Free Speech Coalition as inadequate, and the Court found no findings which supported the claim now. The Court also noted that the First Amendment does not allow the government to suppress lawful speech as a means of suppressing unlawful speech.
The Court also found the law unconstitutionally vague. The Court pointed out that the law gave the government overbroad discretion in deciding whom to prosecute among persons who arguably had "intended to cause another to believe" that they were promoting child pornography. The pandering provision requires no inquiry into the actual nature or even existence of the images, and provides no affirmative defense that hte underlying material are not, in fact, illegal child pornography.
Turning to the sentence, the Court noted that, given the district court’s statement that it doubted the sentence would be lower under non-mandatory Guidelines, and that the sentence might even be higher, the sentence was not "substantially swayed" by the district court’s Booker error in sentencing under mandatory Guidelines.
The pandering provision of the Protect Act criminalized promoting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is or contains [child pornography]." 18 U.S.C. § 2252A(a)(3)(B). The Court found that this provision was overbroad. First, because the provision encompassed "purported" child pornography, or material that reflects a belief that it contains such pornography, the provision swept not just "real" child pornography, but legal child erotica. Further, by having "beliefs" trigger criminal liability, the law effectively focused on thoughts. The Court recognized that, under Supreme Court caselaw, pandering might be probative evidence of intent to unlawfully traffic in child pornography, but held that pandering alone could not, as the statute was written, be the basis for an independent crime.
The Court found Congress’ legislative findings inadequate to sustain the pandering law. The rationale of suppressing the market for child pornography had already been rejected by the Supreme Court in Free Speech Coalition as inadequate, and the Court found no findings which supported the claim now. The Court also noted that the First Amendment does not allow the government to suppress lawful speech as a means of suppressing unlawful speech.
The Court also found the law unconstitutionally vague. The Court pointed out that the law gave the government overbroad discretion in deciding whom to prosecute among persons who arguably had "intended to cause another to believe" that they were promoting child pornography. The pandering provision requires no inquiry into the actual nature or even existence of the images, and provides no affirmative defense that hte underlying material are not, in fact, illegal child pornography.
Turning to the sentence, the Court noted that, given the district court’s statement that it doubted the sentence would be lower under non-mandatory Guidelines, and that the sentence might even be higher, the sentence was not "substantially swayed" by the district court’s Booker error in sentencing under mandatory Guidelines.
Subscribe to:
Posts (Atom)