In U.S. v. Soreide, No. 05-12559 (Aug. 24, 2006), the Court affirmed a grant of summary judgment to the government in a an ancillary action, brought by the wife of a criminal defendant, challenging orders of criminal forfeiture in her husband’s property.
21 U.S.C. § 853(n) allows a third-party to assert an interest in property subject to a preliminary order of forfeiture. The statute establishes a 30-day deadline, and provides two grounds for recovery: (1) a showing of a "superior" interest in the property to the interest of the defendant, and (2) being a bona fide purchaser of the property.
None of the wife’s claims were sustainable under § 853(n). Her claim of a "superior" interest was untimely.
She was not a "bona fide purchaser" within the meaning of the statute, because this provision protest only subsequent purchasers of the defendant’s interest in the property. Here, the wife claimed that she purchased property with the defendant.
Finally, the wife could not succeed on her claim that she was not given adequate notice of forfeiture as to one piece of property. The fact that she mentioned this property in her first petition for relief showed that she had actual notice of its forfeiture.
Friday, August 25, 2006
Monday, August 14, 2006
Henyard: Confession Voluntary in Habeas
In Henyard v. McDonough, No. 05-15110 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1993 murders..
The Court rejected Henyard’s claim that his confession was involuntary. The Court noted that inquiries about how long interrogation would last did not constitute unequivocal invocations of the right to remain silent. Further, the police gave Henyard an opportunity to stop talking, and he waived his right to silence.
The Court also rejected Henyard’s change of venue claim. The Court found that the level of Lake County, Florida press coverage was not such as to presume prejudice.
The Court rejected the claim that counsel was ineffective at the penalty phase for not bringing up, inter alia Henyard’s neglectful childhood. The Court found that the evidence in support of such claims was not strong enough to have affected the outcome. Nor did the evidence overcome the "gruesome" nature of his murders.
The Court rejected Henyard’s claim that his confession was involuntary. The Court noted that inquiries about how long interrogation would last did not constitute unequivocal invocations of the right to remain silent. Further, the police gave Henyard an opportunity to stop talking, and he waived his right to silence.
The Court also rejected Henyard’s change of venue claim. The Court found that the level of Lake County, Florida press coverage was not such as to presume prejudice.
The Court rejected the claim that counsel was ineffective at the penalty phase for not bringing up, inter alia Henyard’s neglectful childhood. The Court found that the evidence in support of such claims was not strong enough to have affected the outcome. Nor did the evidence overcome the "gruesome" nature of his murders.
Valle: No habeas relief for ineffective "model prisoner" argument
In Valle v. Sec. for Dep’t of Corrections, No. 05-15724 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder of a Coral Gables police officer.
Valle claimed that counsel was ineffective because he presented evidence that Valle had been a "model" prisoner, which opened the door for the State to show that he twice tried to escape from prison. The Court found that Valle failed to meet the "prejudice" prong of an ineffectiveness claim.
The Court also rejected Valle’s Batson claim, noting that the prosecutor’s reasons for dismissing black jurors were race neutral, that two black jurors served on the jury, and that Valle himself was not black.
The Court also rejected the claim that his confession was obtained in violation of his Miranda rights, agreeing with the state courts that Valle had not unequivocally invoked his right to remain silent when he told police that he had an attorney who had advised him not to speak to anybody.
Finally, the Court agreed with the Florida Supreme Court that Valle could not prevail on his claim that petit and grand juries in Miami-Dade underrepresented Latin Americans in the relevant time period, because Latin Americans encompass people from too many different backgrounds to constitute a cognizable class for equal protection analysis.
Valle claimed that counsel was ineffective because he presented evidence that Valle had been a "model" prisoner, which opened the door for the State to show that he twice tried to escape from prison. The Court found that Valle failed to meet the "prejudice" prong of an ineffectiveness claim.
The Court also rejected Valle’s Batson claim, noting that the prosecutor’s reasons for dismissing black jurors were race neutral, that two black jurors served on the jury, and that Valle himself was not black.
The Court also rejected the claim that his confession was obtained in violation of his Miranda rights, agreeing with the state courts that Valle had not unequivocally invoked his right to remain silent when he told police that he had an attorney who had advised him not to speak to anybody.
Finally, the Court agreed with the Florida Supreme Court that Valle could not prevail on his claim that petit and grand juries in Miami-Dade underrepresented Latin Americans in the relevant time period, because Latin Americans encompass people from too many different backgrounds to constitute a cognizable class for equal protection analysis.
Hallford: Brady violation not prejudicial
In Hallford v. Culliver, No. 05-12621 (Aug. 11, 2006), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1986 murder.
Hallford claimed that a Brady violation occurred when the State failed to disclose a plea agreement with the victim’s daughter, who was the lead witness against him. The Court recognized that such evidence can be material, but here its withholding was not sufficiently prejudicial to the defendant, in light of the other overwhelming evidence against him.
The Court also rejected an ineffective assistance of counsel claim. The Court found that it was not ineffective for counsel to open the door to evidence that the defendant had committed incest with his daughter who testified against him, as attacks on the daughter’s credibility were a logical part of the guilty phase of the case.
Hallford claimed that a Brady violation occurred when the State failed to disclose a plea agreement with the victim’s daughter, who was the lead witness against him. The Court recognized that such evidence can be material, but here its withholding was not sufficiently prejudicial to the defendant, in light of the other overwhelming evidence against him.
The Court also rejected an ineffective assistance of counsel claim. The Court found that it was not ineffective for counsel to open the door to evidence that the defendant had committed incest with his daughter who testified against him, as attacks on the daughter’s credibility were a logical part of the guilty phase of the case.
Campa: Cuban Spies Tried in Fair Venue
In U.S. v. Campa, No. 01-17176 (Aug. 9, 2006) (en banc), the Court, reversing the prior panel decision, held that the district court did not abuse its discretion in denying a change of venue in the "Cuban spy trial," and remanded the case to the panel for adjudication of the other issues raised on appeal by the defendants.
Noting the "extremely heavy" burden of defendants who seek to establish presumed pretrial publicity, the Court found that the newspaper articles were too remote in time to show that the trial was "utterly corrupted by press coverage." Further, the Court agreed with the district court that a voter survey was too ambiguous to be reliable. In addition, the Court found that the voir dire was a "model" for a high-profile case, which rebutted any claim of prejudice. During the trial, the trial court "fiercely guarded the jury from outside intrusions."
The Court also rejected the defendant’s reliance, as the basis for a motion for a new trial, on the government’s own arguments in an employment case, in which the government argued that the Elian Gonzalez case had so inflamed views in Miami-Dade as to make a fair trial impossible there. The Court found that the doctrine of judicial estoppel did not undermine the government’s different positions in the two cases.
Noting the "extremely heavy" burden of defendants who seek to establish presumed pretrial publicity, the Court found that the newspaper articles were too remote in time to show that the trial was "utterly corrupted by press coverage." Further, the Court agreed with the district court that a voter survey was too ambiguous to be reliable. In addition, the Court found that the voir dire was a "model" for a high-profile case, which rebutted any claim of prejudice. During the trial, the trial court "fiercely guarded the jury from outside intrusions."
The Court also rejected the defendant’s reliance, as the basis for a motion for a new trial, on the government’s own arguments in an employment case, in which the government argued that the Elian Gonzalez case had so inflamed views in Miami-Dade as to make a fair trial impossible there. The Court found that the doctrine of judicial estoppel did not undermine the government’s different positions in the two cases.
Friday, August 11, 2006
Smith: Commerce Clause Power over Child Pornography
In U.S. v.Smith, No. 03-13639 (Aug. 11, 2006), the Court, on remand from the Supreme Court, affirmed the defendant’s convictions for producing and possessing child pornography.
In its prior decision in this case, the Court, applying the "plain error" standard of review, had held the statutes of conviction unconstitutional as applied to Smith, because the interstate nexus, namely, the use of photography materials produced interstate, was insufficient to justify the exercise of Congress’ Commerce Clause power. On remand from the Supreme Court, the Court noted the subsequent change in law effected by Gonzalez v. Raich, 545 U.S. 1 (2005), recognized in its own decision in U.S. v. Maxwell, which upheld the federal regulation of the wholly intrastate cultivation and sale of marihuana, reasoning that Congress can regulate purely local activities which are part of an economic class of activities that have a substantial effect on interstate commerce. The Court held that its prior plain error holding was no longer valid in light of Maxwell and Raich.
Turning to other issues, the Court rejected Smith’s claim of insufficiency of the evidence. The Court also rejected the argument that the "knowingly" element of the offense applied to the jurisdictional nexus, that is, to the interstate travel of the materials comprising the child pornography. The Court noted that there was no risk of penalizing innocent conduct by not requiring mens rea as to the interstate nexus, noting that there is no such thing as innocent intrastate possession of child pornography.
The Court rejected the Fourth Amendment challenge to the search of Smith’s home, finding that the "plain view" doctrine applied. Here, the police, searching for drugs, opened a lockbox which contained photos. It was "very obvious" that the females were minors. This created probable cause to believe a crime had been committed – regardless of whether police had beliefs as to the "technical" elements of the offense, such as whether Smith had "produced" the photos.
The Court also rejected Smith’s challenge to the out-of-court photo identification by one the victims. The Court noted that the police did not instruct the victim to identify the defendant, and that her identification of Smith was spontaneous.
The Court further rejected Smith’s challenge to the introduction in evidence of photo of him naked, and of naked photos of adult women. In the context of the trial, the photos made it Smith’s defense less probable, and were therefore admissible.
Further, applying the "plain error" standard of review, the Court rejected a number of Smith’s challenges to the evidence admitted, to the jury instructions, and to the lack of notice regarding the sentencing guidelines sentence.
In its prior decision in this case, the Court, applying the "plain error" standard of review, had held the statutes of conviction unconstitutional as applied to Smith, because the interstate nexus, namely, the use of photography materials produced interstate, was insufficient to justify the exercise of Congress’ Commerce Clause power. On remand from the Supreme Court, the Court noted the subsequent change in law effected by Gonzalez v. Raich, 545 U.S. 1 (2005), recognized in its own decision in U.S. v. Maxwell, which upheld the federal regulation of the wholly intrastate cultivation and sale of marihuana, reasoning that Congress can regulate purely local activities which are part of an economic class of activities that have a substantial effect on interstate commerce. The Court held that its prior plain error holding was no longer valid in light of Maxwell and Raich.
Turning to other issues, the Court rejected Smith’s claim of insufficiency of the evidence. The Court also rejected the argument that the "knowingly" element of the offense applied to the jurisdictional nexus, that is, to the interstate travel of the materials comprising the child pornography. The Court noted that there was no risk of penalizing innocent conduct by not requiring mens rea as to the interstate nexus, noting that there is no such thing as innocent intrastate possession of child pornography.
The Court rejected the Fourth Amendment challenge to the search of Smith’s home, finding that the "plain view" doctrine applied. Here, the police, searching for drugs, opened a lockbox which contained photos. It was "very obvious" that the females were minors. This created probable cause to believe a crime had been committed – regardless of whether police had beliefs as to the "technical" elements of the offense, such as whether Smith had "produced" the photos.
The Court also rejected Smith’s challenge to the out-of-court photo identification by one the victims. The Court noted that the police did not instruct the victim to identify the defendant, and that her identification of Smith was spontaneous.
The Court further rejected Smith’s challenge to the introduction in evidence of photo of him naked, and of naked photos of adult women. In the context of the trial, the photos made it Smith’s defense less probable, and were therefore admissible.
Further, applying the "plain error" standard of review, the Court rejected a number of Smith’s challenges to the evidence admitted, to the jury instructions, and to the lack of notice regarding the sentencing guidelines sentence.
Hunt: No Presumption in favor Guidelines post Booker
In U.S. v. Hunt, No. 05-11671 (Aug. 10, 2006), the Court held that, post-Booker, a district court "may determine, on a case-by-case basis, the weight to give the Guidelines, so long as that determination is made with reference to the remaining section 3553(a) factors that the court must also consider in calculating the defendant’s sentence." The Court held that there should be no "presumption" in favor of a Guidelines sentence.
The Court acknowledged that the district court when sentencing a defendant under the Guidelines (which reflect a 100:1 crack/powder differential) "made some statements that could be interpreted as presumptions in favor the Guidelines." However, the district court also stated that it believed the Guidelines were worthy of deference "in that particular case." Consequently, the setnence was reasonable.
The Court acknowledged that the district court when sentencing a defendant under the Guidelines (which reflect a 100:1 crack/powder differential) "made some statements that could be interpreted as presumptions in favor the Guidelines." However, the district court also stated that it believed the Guidelines were worthy of deference "in that particular case." Consequently, the setnence was reasonable.
Wednesday, August 09, 2006
Hightower: Defaulted Batson Violation
In Hightower v. Terry, No. 00-15807 (Aug. 8, 2006) (2-1) (Wilson, J. dissented), the Court denied habeas relief to a death row inmate convicted of 1987 murders.
Althought the case was remanded to the Court by the Supreme Court for reconsideration in light of Miller El, the Court found Miller El inapposite.
The Court noted that, when the case was in the Georgia state courts, Hightower did not raise a Batson challenge to jury selection when his conviction was on direct appeal to the Georgia Supreme Court. Consequently, Hightower could only prevail on a Batson challenge if he showed cause and prejudice respecting the failure to raise the issue in state court. The Court therefore found no reason to rule in Hightower’s behalf on the basis of Batson.
Althought the case was remanded to the Court by the Supreme Court for reconsideration in light of Miller El, the Court found Miller El inapposite.
The Court noted that, when the case was in the Georgia state courts, Hightower did not raise a Batson challenge to jury selection when his conviction was on direct appeal to the Georgia Supreme Court. Consequently, Hightower could only prevail on a Batson challenge if he showed cause and prejudice respecting the failure to raise the issue in state court. The Court therefore found no reason to rule in Hightower’s behalf on the basis of Batson.
Woodard: Affirming Conviction for Conspiracy to Deprive City of Honest Services
In U.S. v. Woodard, No. 04-12056 (Aug. 8, 2006), the Court affirmed mail fraud convictions.
The indictment charged the defendant with a single conspiracy with two unlawful objects: using the mails to defraud a city and its citizens (1) of money, and (2) of one defendant’s honest services. The jury instruction, however, instructed the jury that it could convict the defendants if it found one, not necessarily both of the objects, though it had to agree unanimously on this object. Rejecting the argument that the instruction in the disjunctive was error, citing its precedent the Court noted that proof as to only one of the means to accomplish a conspiracy suffices.
The Court also rejected the argument that the Pinkerton jury instruction, which provides that a defendant may be convicted of substantive offense based on the conduct of co-conspirators, effectively removed the intent element from the substantive mail fraud counts. Rejecting this argument, and reviewing the issue for "plain error," the Court found that the indictment’s description of the substantive counts did not make the jury’s finding "plainly insufficient."
Again reviewing for plain error, the Court rejected the argument that the jury should have been instructed on multiple conspiracies. The Court found that the evidence established a single conspiracy.
Finally, the Court rejected a defendant’s argument that his misuse of his public office was not unlawful, finding that he used his official position for personal financial gain, and concealed these transactions. The Court also rejected the co-conspirator’s argument that, as someone not employed by the city, she could not have deprived it of her "honest services." Private citizens, acting in conjunction with public officials, can violate the law.
Turning to sentencing, the Court rejected challenges to the loss amount calculation and the restitution ordered. The Court found that "every dollar" a defendant took deprived the City of his honest services and therefore should count as loss amount. The Court also found no error in ordering restitution to the City, instead of the individual citizen-victims, noting that the City was responsible ultimately for reimbursing the victims.
The indictment charged the defendant with a single conspiracy with two unlawful objects: using the mails to defraud a city and its citizens (1) of money, and (2) of one defendant’s honest services. The jury instruction, however, instructed the jury that it could convict the defendants if it found one, not necessarily both of the objects, though it had to agree unanimously on this object. Rejecting the argument that the instruction in the disjunctive was error, citing its precedent the Court noted that proof as to only one of the means to accomplish a conspiracy suffices.
The Court also rejected the argument that the Pinkerton jury instruction, which provides that a defendant may be convicted of substantive offense based on the conduct of co-conspirators, effectively removed the intent element from the substantive mail fraud counts. Rejecting this argument, and reviewing the issue for "plain error," the Court found that the indictment’s description of the substantive counts did not make the jury’s finding "plainly insufficient."
Again reviewing for plain error, the Court rejected the argument that the jury should have been instructed on multiple conspiracies. The Court found that the evidence established a single conspiracy.
Finally, the Court rejected a defendant’s argument that his misuse of his public office was not unlawful, finding that he used his official position for personal financial gain, and concealed these transactions. The Court also rejected the co-conspirator’s argument that, as someone not employed by the city, she could not have deprived it of her "honest services." Private citizens, acting in conjunction with public officials, can violate the law.
Turning to sentencing, the Court rejected challenges to the loss amount calculation and the restitution ordered. The Court found that "every dollar" a defendant took deprived the City of his honest services and therefore should count as loss amount. The Court also found no error in ordering restitution to the City, instead of the individual citizen-victims, noting that the City was responsible ultimately for reimbursing the victims.
Wade: Pre-indictment conduct not basis for acceptance denial
In U.S. v. Wade, No. 05-12518 (Aug. 4, 2006), the Court affirmed in part and reversed in part a sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g).
The Court rejected the defendant’s argument that a prior Georgia conviction for attempted burglary should not count as a "violent felony" for purposes of qualifying as an Armed Career Criminal under 18 U.S.C. § 924(e) and the Guidelines criminal history provisions. The Court pointed out that Wade conceded that his attempted burglary resulted from an attempt to kick in the door of a residence to commit a theft, conduct which creates a potential risk of physical injury sufficient to qualify as a "violent felony." The Court noted that it had reached a similar result in a prior case involving attempted burglary under Florida law.
The Court, however, agreed with the defendant that the district court erred when it denied him a two-level acceptance of responsibility sentence reduction, despite his timely guilty plea, because the defendant unlawfully possessed a firearm a few months after being arrested on state charges for the same unlawful possession offense, involving a different firearm. The Court noted that this conduct predated the indicment in the federal case. The relevant period for assessing acceptance of responsibility for a federal offense is post-federal indictment, not post-arrest on state charges. The Court noted the lost incentive to plead guilty if pre-indictment conduct could be a ground for denying the sentence reduction. The Court vacated the sentence, and remanded for resentencing, noting that the resentencing would take place under the new post-Booker regime.
The Court rejected the defendant’s argument that a prior Georgia conviction for attempted burglary should not count as a "violent felony" for purposes of qualifying as an Armed Career Criminal under 18 U.S.C. § 924(e) and the Guidelines criminal history provisions. The Court pointed out that Wade conceded that his attempted burglary resulted from an attempt to kick in the door of a residence to commit a theft, conduct which creates a potential risk of physical injury sufficient to qualify as a "violent felony." The Court noted that it had reached a similar result in a prior case involving attempted burglary under Florida law.
The Court, however, agreed with the defendant that the district court erred when it denied him a two-level acceptance of responsibility sentence reduction, despite his timely guilty plea, because the defendant unlawfully possessed a firearm a few months after being arrested on state charges for the same unlawful possession offense, involving a different firearm. The Court noted that this conduct predated the indicment in the federal case. The relevant period for assessing acceptance of responsibility for a federal offense is post-federal indictment, not post-arrest on state charges. The Court noted the lost incentive to plead guilty if pre-indictment conduct could be a ground for denying the sentence reduction. The Court vacated the sentence, and remanded for resentencing, noting that the resentencing would take place under the new post-Booker regime.
Thursday, August 03, 2006
Williams: No Ineffectiveness of Counsel
In Williams v. Allen, No. 05-12691 (Aug. 2, 2006), the Court affirmed the denial of habeas relief to a defendant sentenced to death for a 1988 murder.
The Court rejected the argument that Williams received ineffective assistance of counsel because counsel failed to review a file before trial. The Court found that no prejudice resulted from this, as the file would not have helped Williams sustain a relevancy objection to incriminating evidence.
The Court also rejected the argument that counsel was ineffective for failing to investigate mitigating evidence for use at sentencing. The pertinent information was in fact presented, and any deficiency did not undermine confidence in the outcome of the case.
Finally, the Court rejected the argument that counsel failed to investigate "reasonable doubt" as to whether Williams committed murder. The Court found that the theories of defense were adequately investigated, and any failure did not prejudice Williams.
The Court rejected the argument that Williams received ineffective assistance of counsel because counsel failed to review a file before trial. The Court found that no prejudice resulted from this, as the file would not have helped Williams sustain a relevancy objection to incriminating evidence.
The Court also rejected the argument that counsel was ineffective for failing to investigate mitigating evidence for use at sentencing. The pertinent information was in fact presented, and any deficiency did not undermine confidence in the outcome of the case.
Finally, the Court rejected the argument that counsel failed to investigate "reasonable doubt" as to whether Williams committed murder. The Court found that the theories of defense were adequately investigated, and any failure did not prejudice Williams.
Irizarry: Rule 32(h) Notice Not Required for Upward Variances
In U.S. v. Irizarry, No. 05-11718 (Aug. 1, 2006), the Court held that Fed. R. Crim. P. 32(h), which requires sentencing courts to give defendants advance notice of a possible imposition of an upward departure from the Guidelines range, does not apply to sentence enhancement imposed on the basis of 18 U.S.C. § 3553.
At sentencing, without advance notice, the court imposed a six-month variance above the Guideline range. The defendant pled guilty to making a threatening interstate communication to his wife, in violation of 18 U.S.C. § 875(c), and the court imposed a higher sentence because it concluded that additional protection was warranted because the defendant remained determined to threaten his wife.
Joining three other Circuits on this point, the Court held that Rule 32(h) does not apply to post-Booker variances, because parties are on notice that a court can select a sentence between the statutory maximum and minimum.
At sentencing, without advance notice, the court imposed a six-month variance above the Guideline range. The defendant pled guilty to making a threatening interstate communication to his wife, in violation of 18 U.S.C. § 875(c), and the court imposed a higher sentence because it concluded that additional protection was warranted because the defendant remained determined to threaten his wife.
Joining three other Circuits on this point, the Court held that Rule 32(h) does not apply to post-Booker variances, because parties are on notice that a court can select a sentence between the statutory maximum and minimum.
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