King: No Reasonable Expectation of Privacy in Shared Computer Files

In U.S. v. King, No. 07-11808 (Dec. 14, 2007), the Court rejected Fourth Amendment challenges to a computer search of a defendant convicted of possessing child pornography, and, ruling against the government’s sentencing appeal, affirmed the district court’s ruling that King’s contemporaneous conviction for transporting child pornography did not count as a "prior conviction" for the purpose of imposing a mandatory ten years’ sentence.
The defendant’s computer flies at an army base were "shared" over the entire base network, and everyone on the network had access to all his files and could observe them. Thus, the search of his computer was akin to a search of the entire network. The contents of his computer were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public, and King therefore had no reasonable expectation of privacy in them.
Turning to the sentencing issue, the Court noted that the child pornography statute provides for a ten-year mandatory minimum if the defendant has a "prior conviction under this chapter." King’s convictions for possessing and for transporting child pornography were entered at the same time. The Court concluded therefore that the transporting conviction did not qualify as a "prior" conviction – distinguishing Deal v. U.S..

Straub: No Subject Matter Jurisdiction needed for Criminal Contempt

In U.S. v. Straub, No. 06-14354 (Nov. 29, 2007), the Court affirmed the criminal contempt conviction of a defendant who violated a court order to not be present during the removal of property from specific premises.
The defendant claimed that the district court lacked jurisdiction to hold him in criminal contempt, because the court later determined that it lacked subject matter jurisdiction over the case. Rejecting this argument, the Court analogized criminal contempt to sanctions under Rule 11 of the Federal Rules of Civil Procedure – which can be imposed regardless of whether a court lacks subject matter jurisdiction. Willy v. Coastal Corp., 503 U.S. 131 (1992). The Court distinguished contrary dicta in its caselaw as "inapposite."
The Court also concluded that the order that Straub was charged with violating was "reasonably specific," and further rejected Straub’s claim that his conduct was not "willful."

Dohan: No Improper Vouching

In U.S. v. Dohan, No. 06-14320 (Nov. 28, 2007), the Court affirmed the conviction of a defendant charged with fraud and money-laundering.
Reviewing for "plain error," the Court rejected the argument that the government should have corrected a cooperating witness testimony that he was testifying of his own volition, when he was in fact still subject to supervised release. The Court noted that the issue involved the witness’ beliefs, and that the witness had been subject to vigorous cross-examination.
The Court also rejected the argument that the government improperly vouched for credibility of the witness’ credibility by suggesting that he had been "checked" by the prosecutor, and also by the judge earlier in reducing the witness’ sentence for giving substantial assistance. The Court found no error and no prejudice. The Court also found no error in the witness’ testimony that he was a "moral, Christian man."
Finally, the Court rejected the argument that the district court erred in giving a "specific intent" jury instruction, as provided in the Eleventh Circuit Model Jury Instructions, as being the mens rea of the laundering offense. The Court noted that its own caselaw no longer required specific intent, but mere knowing and voluntary participation in the conspiracy. The caselaw trumped the old Model Instruction.

Foley: Sentencing Court abdicated responsibility

In U.S. v. Foley, No. 06-11145 (Nov. 21, 2007), on a government appeal of a sentence of a defendant convicted of fraud, the Court reversed the sentence and remanded for resentencing.
The Court agreed with the government that the district court erred in believing that the forfeiture amount found by the jury bound the court when calculating the amount of "loss" for sentencing purposes. The Court noted that forfeiture and loss are distinct, and require distinct calculations. Loss takes account of "relevant conduct." The sentencing court therefore "abdicated its responsibility" to make independent Guideline findings.
The Court also found that the district court erred, when calculating the number of victims, in relying on the number of persons who had responded to a probation office questionnaire. The Court noted that these responses did not "establish how many people sustained the loss."
The Court further found that the district court erred when it abdicated its responsibility to determine whether the defendant obstructed justice.
The Court noted that these cumulative errors were not harmless, since they resulted in a sentence 250 months below the bottom of the otherwise potentially applicable Guidelines range – a factor the district court must still consider.
The Court rejected all of Foley’s arguments on cross-appeal. The Court noted that the restitution statute now defined a "victim" more broadly than before, therefore making Foley liable to "any victim" of his fraud scheme. The Court rejected all of Foley’s remaining arguments as meritless.

Hurtado: Misuse of Identification Does not require theft

In U.S. v. Hurtado, No. 07-11138 (Nov. 21, 2007), the Court affirmed the conviction of a defendant convicted of unlawfully using another person’s identification, in violation of 18 U.S.C. § 1028A(a)(1).
The Court rejected the argument that the conviction should be vacated because proof that the defendant "stole" the identification of another, and proof that the defendant knew that the identification was of an "actual person," were elements of the offense, which the government failed to prove. The Court explained that the statute criminalizes use of identification "without lawful authority," and this definition encompasses situations other than theft of the identification. The Court further explained that knowledge of that there is an actual person is not an element of the offense, because this is not required to avoid convicting the defendant of non-culpable conduct.

Drury: Denial of rehearing not AEDPA limitations start point

In Drury v. U.S., No. 07-12130 (Nov. 13, 2007), the Court held that, for purposes of determining the starting point for AEDPA’s one-year statute of limitations for § 2255 claims, the period begins to run when the Supreme Court denies certiorari, not thereafter, when the Supreme Court denies a motion to rehear the denial of certiorari. The Court joined other circuits to have so held, and noted that under the Supreme Court rules, a motion to rehear the denial of certiorari does not suspend the order of denial.

Davis v. Jones: Appearance of Impartiality not required by due process

In Davis v. Jones, No. 06-15530 (Nov. 8, 2007), the Court denied habeas relief to an Alabama inmate who claimed that the fact that the State’s attorney was the brother of the Alabama judge who presided over certain pre-trial proceedings created an appearance of impartiality that violated Due Process.
The Court noted that, under Supreme Court caselaw, only actual bias, not the appearance of bias, rises to a Due Process violation. Although the federal recusal rules would have required recusal in these circumstances, Due Process did not so require. Hence, the Alabama proceedings did not violate Due Process.

Jackson: Physical evidence resulting from un-Mirandized statement

In U.S. v. Jackson, No. 06-15186 (Nov. 9, 2007), the Court affirmed the denial of a Miranda-based motion to suppress.
The defendant gave an un-Mirandized statement to police, as a result of which the police found a firearm and ammunition in his home. The statement itself was voluntary, and the defendant was not seeking to suppress the statement, but the fruit of the search based on the statement. Citing the narrowest grounds for the decision in United States v. Patane, 542 U.S. 630 (2004), the Court held that a Miranda violation that produces a voluntary statement does not entail suppression of the physical evidence found as a result of the un-Mirandized statement.

Mintmire: Lawyer Obstruction Conviction Upheld

In U.S. v. Mintmire, No. 06-11212 (Nov. 13, 2007), the Court affirmed the convictions of a Florida lawyer charged with attempting to obstruct a grand jury investigation into a stock sale.
The Court rejected a challenge to the sufficiency of the evidence. The Court found ample evidence that Mintmire had attempted to coach a witness to give false testimony before the grand jury.
The Court also rejected a challenge to the jury instructions, finding that the trial court properly instructed the jury on the affirmative defense that Mintmire was acting as a lawyer and giving bona fide legal representation at the time he committed the charged conduct.
Finally, the Court found no prejudicial spillover in the fact that Mintmire was prosecuted in a single trial for two separate obstruction counts.

Mangaroo: Probation Plain Error for 924(c) sentence

In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies.
The Court noted that at the conclusion of sentencing, the government only made generalized objections, such as "the government objects to the sentence." This did not suffice to preserve for appeal the error in the sentences, namely the fact that the district court imposed sentences of probation when the statute for the offense of conviction, 18 U.S.C. § 924(c), expressly excludes probation as a sentencing option. However, because this error was plain from the language of the statute, the error constituted "plain error," and grounds, therefore, for vacating the sentences.
The Court pointed out that at the original sentencing, the district court did not cite any assistance-related factors to justify its downward departures. The Court agreed with the government that, at resentencing, the downward departures based on the defendants’ cooperation must be limited to the nature of the "substantial assistance" they provided.

Moore: Rule 29 Motion in VA theft

In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court’s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf

Robison: CWA Convictions Reversed

In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.
The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v. U.S., 126 S.Ct. 2208 (2006). Though recognizing some confusion in the law regarding Rapanos’ definition of "navigable waters," the Court held that it involved a "significant nexus" between the waters affected by a defendant’s pollution and waters that are in fact "navigable." The instruction failed to convey this concept, and this error was not harmless, because there was no evidence that the creek into which the defendants dumped pollutants caused harm to the river into which the creek flowed.
Turning to the false statement conviction, a specific intent crime, the Court noted that the statement in question merely certified that reports had been prepared under the person’s supervision. This representation was true, and it did not establish that the person making the statement knew that the reports were false, or vouched for the accuracy of the reports. Hence the evidence was insufficient to sustain the false statement conviction.

Brown: Union officials convictions upheld

In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members.
The Court rejected the argument that there was insufficient evidence to support the Taft-Hartley counts. The defendants argued that employees of a firm that made payments to them belonged to another union, and therefore could not be considered persons who might be "admitted to membership" in defendants’ firm, a requirement for Taft-Hartley liability. But the Court found that because these employees could have been solicited to join the defendants’ union despite this roadblock.
Declining to follow a Second Circuit precedent, the Court found that despite the infirmity of certain predicate acts of RICO conspiracy, the jury’s general verdict was valid, because the "continuity: element could be inferred from the 2 valid predicate acts which the jury found. This continuity was provided by the fraudulent vouchers for reimbursement that were submitted over a six year period.
The Court also sustained the RICO conspiracy conviction, finding that evidence of Brown’s concealment of his receipt of funds showed the agreement on the overall objective of the conspiracy.
The Court further sustained the conviction for depriving the union of "honest services." The Court found that the payments Brown received, payments he concealed from the union, supported this count of conviction.
The Court found that, even assuming the district court erroneously failed to instruct the jury that the existence of employees, not supervisors, in a firm from which the defendant receives prohibited payments, were one element the Taft-Hartley violations, the error was harmless – the jury would still have convicted.
The Court rejected the argument that Brown should have been granted a severance from his assistant. Brown claimed that, had they been tried separately, he would have called his assistant as an exculpatory witness. The Court found no "compelling prejudice" in the denial of the severance.
Turning to the assistant’s appeal, the Court rejected the argument that a RICO "enterprise" can also be the victim of the RICO offense. The "enterprise" need not be the instrument "through which" the violation occurs. It can be the victim.
The Court found "ample evidence" that the assistant was aware of the overall purpose of the conspiracy, noting her "extraordinary control" over the union books, and her ability to enrich herself.
The Court upheld a jury instruction which stated that a "lower level" participant in an enterprise could be held criminally responsible for a RICO offense, finding it in accord with Circuit precedent.
Finally, turning to sentencing, the Court upheld an order of forfeiture in excess of $500,000. The Court upheld finding the assistant jointly liable for the total amount of the loss. Though this amount was not reasonably foreseeable, it was valid. The Court declined to follow contrary holdings in other circuits, noting the "punitive" character of forfeiture. The Court again cited the punitive character of forfeitures in declining to credit the assistant for moneys that she had returned to the union. The Court also rejected the argument that the forfeiture was unconstitutionally excessive.http://www.ca11.uscourts.gov/opinions/ops/200511137.pdf

Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive

In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There’s no need of sending any notes that you can’t agree, because you are going to stay here for a long time." Citing Jenkins v. United States, 380 U.S. 445 (1965), the Court held that the instructions were "impermissibly coercive."
The Court noted that there was sufficient evidence to convict, and therefore remanded the case for a new trial.

Delancy: Consensual search not fruit of poisonous tree

In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant’s girlfriend’s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual.
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."

Khanani: "Proceeds" are not proceeds of the labor

In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court’s entry of a judgment of acquittal on the money laundering counts. The case arose out of the defendant’s employment of illegal aliens in their jeans retail stores.
The Court found no error in the district court’s refusal to instruct the jury that "mere employment" of illegal aliens would not suffice to establish guilt of harboring illegal aliens. The Court found that the instructions that were given were already adequate to describe the offense, and that no further instruction was required.
The Court also rejected the argument that the search of the computers at the defendants businesses violated the Fourth Amendment. The Court noted that while the search warrant affidavit did not indicate that computer-generated forms were involved, a "common sense" interpretation of the affidavit gave rise to this inference.
The Court also found no abuse of discretion in denying a motion for a mistrial based on a juror’s statement that a person resembling the defendant had "locked eyes" with her and felt a "presence of danger." The Court noted that the district court investigated the matter and found no prejudice to the defendant.
The Court held that it was not error to admit, on the government’s cross-examination, a co-defendant’s testimony that the defendant's involvement in the offense "would not surprise him" . The Court noted that this question was relevant in light of the co-defendant’s direct testimony, and was not given for the truth of the matter but for impeachment purposes. Further, counsel had not sought an instruction limiting the statement to being admissible for impeachment purposes, in accordance with FRE 105, and thus waived this issue.
Finally, the Court, ruling against the government’s appeal, rejected the argument that, for purposes of determining whether "proceeds" of specified unlawful activity were laundered, the cost savings to the defendants from using illegal aliens in their retail jean sales could be considered "proceeds." The Court stated that it is "decidedly unnatural to say that the moneys one has received from the sale of a good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor used to produce the goods."
http://www.ca11.uscourts.gov/opinions/ops/200511689.pdf

Ramirez: Second 851 Notice Unnecessary

In U.S. v. Ramirez, No. 06-16404 (Sept. 11, 2007), the Court held that when the government, after filing an original notice of intent to seek a mandatory life sentence, in accordance with 21 U.S.C. § 851(a)(1), thereafter filed a new information, but neglected to file a new § 851 notice, the omission did not prevent the imposition of a life-sentence.
The Court noted that in U.S. v. Thompson, 473 F.3d 1137 (11th Cir. 2006), the Court had held that an original § 851 notice sufficed, notwithstanding the failure to file a new notice after the government had filed a superseding indictment. Here, the government filed a new information, under a new case number. The Court held that, as in Thompson, "a second notice was unnecessary." The Court pointed out that Ramirez had notice of the government’s intent to seek the enhanced sentence. The Court cautioned that it might reach a different result if the § 851 notice related to a case "dismissed long ago."

Fields: Knowledge of out of state residency of child is essential element

In U.S. v. Fields, No. 06-13784 (Sept. 21, 2007), the Court reversed the conviction of a defendant convicted of willfully failing to pay past due child support, in violation of 18 U.S.C. § 228(a)(1).
The elements of the offense are (1) a willful failure to pay, (2) past due support, (3) to a child who resides in another state. The defendant claimed that since his ex-wife, without his knowledge, moved with their child out of Florida, he, a Florida resident, lacked the willful mens rea of the statute as to the out-of-state status of his child. The district court rejected this argument, finding that the out-of-state status of the child was a mere jurisdictional hook, as to which no mental state was required. Reversing, the Court pointed out that since child support obligations always arose out of state court judgments, the federal duty to pay child support, violation of which can give rise to federal criminal liability, can only arise when the child resides out of state. Federal criminal statutes generally require proof of the defendant’s knowledge of the facts that give rise to a violation of the law, and here one of the facts was the child’s out-of-state residence. The removal of the child by the mother out of state is what made the defendant’s failure to pay child support criminal under federal law, and this event was hidden from the father by the mother. Thus, there was no "willful" violation of the statute. The Court therefore reversed the conviction.

Valdes: No reasons for extraordinary variance

In U.S. v. Valdes, No. 06-15951 (Sept. 18, 2007), the Court vacated a 108-month sentence, which exceeded the 41-51 month range of the PSI, and the 57-71 month range urged by the government.
The Court noted that if the district court intended to apply an upward departure under USSG 4A1.3, if failed to follow the requisite procedures, namely it failed to first consider the next criminal history category and make a determination whether its range was appropriate. The Court further noted that if the district court intended to rely on 18 U.S.C. § 3553(a) to vary upward from the Guidelines, the reasons discussed were inadequate to support an extraordinary variance. The Court noted that nothing extraordinary about the case justified the extreme variance, pointing out that even though the offense of conviction involved counterfeiting checks from the clerk of the District Court, this office was no different from any other fraud victim.

Otero: Counsel not ineffective for failing to appeal

In U.S. v. Otero, No. 06-15791 (Sept. 17, 2007), the Court held that Otero’s lawyer had no constitutional duty under the criteria of Roe v. Flores-Ortega, 528 U.S. 470 (2000) to consult Otero about an appeal, and therefore denied Otero’s § 2255 motion based on counsel’s failure to file an appeal.
Otero pled guilty to drug trafficking charges. He waived his right of appeal in his plea agreement. Consequently, he had no non-frivolous issues for appeal. Hence, no rational defendant in Otero’s position would have sought to appeal, and counsel therefore did not render ineffective assistance.
The Court also rejected Otero’s claim that he specifically instructed his lawyer to file an appeal. The Court adopted the district court’s credibility determinations that Otero never indicated a desire to appeal.

Marzurky: Cap on Supervised Release

In U.S. v. Mazarky, No. 06-13316 (Sept. 12, 2007), the Court, adopting the view of all other Circuits to have construed the statute, held that a new term of supervised release imposed after two successive revocations of supervised release must be reduced from the statutory maximum by the aggregate length of imprisonment imposed in both revocations. The Court therefore vacated the sentence and remanded for resentencing.
The statutory maximum term of supervised release for Mazarky’s original offense of conviction was three years. After his first revocation of supervised release he was sentenced to 10 months imprisonment. After his second revocation of supervised release he was sentenced to 8 months imprisonment – and the district court also imposed a 28-month term of supervised release. Mazarky argued that the 28-month term was invalid, because the statute required that he be given credit for the aggregate 18 months prison sentence off the 36-month cap, resulting in a maximum of 18 months of supervised release. The Court agreed, noting the interpretations of the applicable statutes, 18 U.S.C. §§3583(e)(3) & (h), by other Circuits.
The Court rejected the government’s argument, first raised in this appeal, that the statutory supervised release maximum was greater than three years, because the drug trafficking offense of conviction carried a statutory maximum greater than the three years provided in the supervised release statute. The Court noted that Mazarky’s guilty plea was based on a three-year maximum for supervised release, and "in order to preserve notice to the defendant" it declined to consider this new argument.

Maturin: 15-year old conviction counts as aggravated felony

In U.S. v. Maturin, No. 07-10481 (Sept. 11, 2007), the Court held that a more than 15-year old conviction for drug trafficking qualified as an "aggravated felony" and therefore subjected Maturin to a 17-month sentence enhancement for his conviction for illegally reentering the United States after deportation.
The Court held that the plain meaning of the statutory phrase that limited convictions more than 15 years old from qualifying as aggravated felonies referred only to foreign, not domestic, convictions. The Court rejected Maturin’s contrary interpretation.

Fleet: Federal Forfeiture Preempts Florida Homestead

In U.S. v. Fleet, No. 06-12454 (Sept. 5, 2007), the Court held that the provision of the federal criminal forfeiture statute, 21 U.S.C. § 853(p), which authorizes the forfeiture of a criminal defendant’s substitute property in the event moneys traceable to the crime cannot be located or have been transferred to a third-party, preempts Florida’s homestead exemption and property law governing tenancies by the entireties.
The Court recognized that unlike the general provision governing criminal forfeiture, which expressly preempts State law, the provision governing substitute property did not contain an express preemption provision. The Court noted, however, that the Supreme Court has stated that the inclusio unius est exclusio alterius logic does not apply to express/implied preemptions. The Court therefore turned to words of the forfeiture statute, which broadly authorized the courts to forfeit "any" substitute property. Further, the Court noted that its interpretation was consistent with the remedial purpose of forfeiture, which is to enforce the old adage that crime does not pay.

Dorsey: Failure to file 5K1.1 for going to trial can be vindictive

In U.S. v. Dorsey, No. 06-16698 (Aug. 31, 2007), the Court vacated a sentence based on the defendant’s claim that the government vindictively refused to file a USSG § 5K1.1 motion for reduction of sentence because he went to trial.
After his arrest, Dorsey provided information to law enforcement which immediately led to the arrest of a cocaine-trafficking accomplice. The government then promised him a 5K1.1 departure if he pled guilty. Dorsey elected to go to trial. He was convicted. The government then declined to move for a 5K1.1 departure, claiming that the assistance was "minimal" and that Dorsey started dealing drugs again.
The Court held that a vindictive refusal by the government to move for a 5K1.1 reduction based on a defendant’s exercise of his right to jury trial could be an unconstitutional motive. However, the defendant bears the burden of proving prosecutorial vindictiveness. In some cases, a defendant may rely on a presumption of vindictiveness, which can then be rebutted. In this case, the government had rebutted the presumption, by claiming that the assistance was minimal, and that Dorsey started dealing drugs again, thus proffering legitimate reasons for its failure to file a 5K1.1 motion.
Dorsey therefore had to establish actual vindictiveness. This would require more than showing that the government carried out a threat not to move for a 5K1.1 unless the defendant pled guilty. Because the record was not clear why the government failed to move for a § 5K1.1, the Court remanded the case to the district court for fact-finding at a new sentencing hearing.

Agbai: Cookie-cutter sentence ok

In U.S. v. Agbai, No. 06-15691 (Aug. 31, 2007), the Court affirmed the imposition of a 41-month sentence on a defendant convicted of use of a counterfeit device in connection with credit card fraud.
The Court rejected the argument that the district court erred when it treated the guidelines as "presumptively reasonable." Noting that Rita v. U.S., 127 S.Ct. 2456 (2007) stated that when a judge decides to follow the Guidelines in a particular case, and when the defendant does not argue that this Guideline is unsound generally, a lengthy explanation is not required.
The Court also rejected the argument that the 41-month sentence was unreasonable, noting the district court’s finding that Agbai’s offense presented a "cookie-cutter case."

Taber: Use of Minor Enhancement

In U.S. v. Taber, No. 07-10973 (Aug. 29, 2007), the Court affirmed the imposition of a two-level sentence enhancement under USSG § 3B1.4 for use of a minor in the commission his theft of firearms.
USSG § 3B1.4 provides for a sentence enhancement if the defendant used a person less than 18 years old to commit the offense. The Court recognized that in this case the minor devised the crime, and invited Tabor to participate in the theft of firearms. Nonetheless, it rejected the argument that the § 3B1.4 enhancement should not apply. The Court found that Taber took affirmative acts to involve the minor, by encouraging and helping the minor steal the firearms. These subsequent affirmative acts warranted the § 3B1.4 enhancement.

Gordon: No ineffectiveness in failing to object to non-allocution

In Gordon v. U.S., No. 05-16703 (Aug. 23, 2007), the Court denied habeas relief to a federal inmate who claimed that his counsel was ineffective for failing to object to the district court’s failure to inform him of the charges to which he was pleading, and failure to address the defendant personally regarding his right to allocute.
The Court assumed that the district court erred when it did not advise Gordon of the charges to which he was pleading, but denied relief because this error did not affect Gordon’s substantial rights. The record showed that both defense counsel and the prosecutor had explained the charges to Gordon.
Because defense counsel might reasonably have decided, for strategic reasons, not to object to the absence of inquiry about Gordon’s right to allocute – because Gordon would have seemed even "less honest" if he had addressed the court – the Court found no ineffectiveness here as well.

Jones: No Unequivocal Request to Proceed Pro Se

In Jones v. Walker, No. 04-13562 (Aug. 27, 2007), the Court granted habeas relief to a Georgia state inmate on the ground that the state erroneously deprived him of the right to counsel in circumstances where the defendant, though unhappy with his trial counsel, had not unequivocally assert a desire to waive counsel and to represent himself, yet was ordered to proceed pro se. The Court found that the state courts erroneously found that trial counsel had advised the defendant of the "dangers" of self-representation, when in fact she had not. The Court further found that the defendant’s complaints about the incompetence of his court-appointed lawyer did not amount to a clear and unequivocal request to proceed pro se. The Count noted that the legal standard governing this issue is now before it en banc in U.S. v. Garey.

Mattern: Habeas Claim not Moot re: prior conviction

In Mattern v. Sec. Dep’t of Corrections, No. 05-15161 (Aug. 7, 2007), the Court reversed the denial of a habeas petition by a state inmate.
After being convicted for aggravated battery, and being sentenced to probation, Mattern’s probation was revoked. At his probation revocation hearing he argued, correctly, that his prior conviction should have been for simple battery, not aggravated battery. This argument failed, and, after exhausting his state post-conviction remedies, he brought this claim in a federal habeas proceeding. By then, he had been released from incarceration – but arrested on another battery charge, for which the prior aggravating battery conviction would increase his potential sentence. The district court dismissed the petition on mootness grounds.
Reversing, the Court noted that because Mattern had been arrested at the time he brought his federal habeas claim, and the prior conviction was used to enhance his punishment for this latest crime, his challenge to this conviction was not moot.
The Court noted the remaining question of whether Mattern had exercised due diligence in timely asserting his challenge to the prior aggravated battery conviction, and remanded the case for an evidentiary hearing on this issue.

Gaskin: Death row inmate habeas denied

In Gaskin v. Sec. Dep’t Corrections, No. 06-12351 (Aug. 3, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for two 1989 murders.
The Court rejected the claim that defense counsel was ineffective for failing to present mitigation evidence. The Court found that defense counsel made a defensible strategic decision in view of the damaging evidence that would have come out had the defendant’s personal history become an issue.
The Court also rejected Gaskin’s challenge to the failure to grant his change of venue motion, based on pretrial publicity. The Court found that he failed to show the kind of saturated publicity that would allow the Court to presume prejudice.

Vance: Enhancements for Unlawful Travel for Sex with Minor

In U.S. v. Vance, No. 06-13035 (Aug. 3, 2007), the Court affirmed the conviction and sentence of a defendant for attempting to travel in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor.
The Court found no plain error in the district court’s exclusion, on hearsay grounds, of a defense witness’ statement that the defendant claimed would have been a "prior consistent statement," admissible to counter the government’s claim of recent fabrication. The Court noted defense counsel’s failure to proffer any basis for the statement’s admission at trial, and the district court’s judgment that the statement might have been part of the fabrication.
The Court also affirmed a sentence enhancement for unduly influencing a minor, despite the fact that the only person with whom the defendant communicated was an undercover police officer, not a minor. The Court held that by employing the undercover officer as an intermediary to effectuate his influence, he unduly influenced a minor. The focus is on the defendant’s state of mind, regardless of whether the victim is fictitious.
The Court also affirmed the imposition of an enhancement for use of a computer, rejecting the defendant’s argument that the officer, not him, did the "soliciting." The Court noted that the defendant used a computer to communicate with someone he believed had custody of a minor.

Ferreira: Habeas Petition Timely Filed after Resentencing

In Ferreira v. Sec. Dept. of Corrections, No. 04-15761 (Aug. 7, 2007), the Court held that Burton v. Stewart, __U.S. __, 127 S.Ct. 793 (2007) effectively overruled Rainey v. Sec’y for the Dep’t of Corr., 443 F.3d 1323 (11th Cir. 2006), and therefore, on remand from the United States Supreme Court, it reinstated as timely Ferreira’s federal habeas petition.
Ferreira filed a federal habeas petition within the one-year statute of limitations after he had been resentenced on a state conviction, but after the expiration of the limitations period after the original judgment of conviction. The Court noted that the Supreme Court in Burton made clear that the limitations provisions of AEDPA are focused on the judgment which holds the petitioner in confinement. Therefore, the statute of limitations period begins to run from the date both the conviction and the sentence the petitioner is serving become final. Hence, Ferreira’s federal habeas petition was timely, because filed within the limitations period that followed his resentencing.

Haun: False Coast Guard Distress Call

In U.S. v. Haun, No. 06-14556 (Aug. 6, 2007), the Court affirmed a conviction for causing the Coast Guard to attempt to save his life, when no help was needed, in violation of 14 U.S.C. § 88(c). The defendant allegedly faked his disappearance while out on a boating trip off of Panama City, Florida. A Coast Guard search for him ensued.
Haun claimed that he did not violate the statute, because a state agency, not Haun himself, nor even the persons on the boat from which he disappeared, placed the distress call to the Coast Guard. Citing the legislative history of the statute, the Court noted that Congress meant to punish not just those who send a false distress message, but also those who, indirectly, by their conduct, cause the Coast Guard to attempt to save life when no help is needed. Here, Haun’s actions were done intentionally, with a bad purpose. He faked his disappearance to avoid a court date, and knew that his disappearance would be reported to authorities.

Lopez-Vanegas: Drug Trafficking Outside US not Crime in US

In U.S. v. Lopez-Vanegas, No. 05-15021 (July 26, 2007), the Court reversed drug trafficking convictions, finding that mere discussions within the United States related to trafficking controlled substances outside the United States was not a crime.
The Court recognized that in prior cases, courts have given extraterritorial application to 21 U.S.C. § 841 & 846, the drug trafficking offenses. However, in those cases "defendants either possessed or conspired to possess drug substances within the United States, or intended to distribute controlled substances within the United States." Here, the evidence only showed an intent to possess outside the United States, and to distribute outside the United States. Congress showed no intent to criminalize this conduct. Accordingly, the Court vacated the convictions.

Tampas: YMCA Embezzlement Fraud Conviction Affirmed

In U.S. v. Tampas, No. 06-12051 (July 26, 2007), the Court reversed the restitution order but affirmed the convictions of a defendant convicted of defrauding the Valdosta-Lowndes County, Georgia, YMCA – of which he was President and Executive Director. The scheme involved using YMCA moneys to pay for extensive renovations at Tampas’ home.
The Court rejected a sufficiency of the evidence challenge to the convictions, pointing to the handwritten time slips the contractor used in lieu of invoices. The Court also noted that the YMCA Board did not approve the use of the YMCA American Express for Tampas’ personal expenses. The Court also affirmed the conviction for misleading conduct in violation of 18 U.S.C. § 1512(b), pointing out that Tampas asked an employee to prepare fraudulent spreadsheets to hide the fraudulent work.
The Court rejected Tampas’ indictment "constructive amendment" argument. Tampas claimed that he was convicted for much smaller dollar amounts than those listed in the indictment. The jury instructions did not change the elements of the offenses charged in the indictment, and did not have to specify the exact amounts involved.
The Court also rejected Tampas challenge to the admission, as unduly prejudicial, of evidence that the YMCA had a large amount of unpaid taxes. The Court noted that this evidence was not admitted to prove Tampas’ culpability, and that, in any event, he was aware of the failure to remit taxes.
The Court also rejected challenges to improper prosecutor statements, finding them to have been cured by the court’s instructions. The Court also rejected a challenge to the trial court’s statement "Why can’t the defendant testify about that?," noting that the court offered a curative instruction and that this question had no effect on the jury.
Turning to the sentence, the Court affirmed the obstruction of justice enhancement based on the creation of misleading spreadsheets. The Court also found no error in the loss amount computation in view the district court’s stated intent to impose its sentence under § 3553(a).
For restitution, however, the Court reversed the order which required Tampas to pay YMCA the amount of its unpaid payroll taxes. The Court noted that the government never proved that Tampas’ embezzlement caused the YMCA to fail to pay payroll taxes. The Court noted Tampas preference that the case not be remanded to the district court for resentencing, so that the government could prove other losses to the YMCA, but rejected this request, noting his failure to cite caselaw supporting his "no two bites at the apple" sentencing argument.

Robertson: Lawsuit Settlement not part of Restitution Owed

In U.S. v. Roberston, No. 06-13267 (July 27, 2007), the Court affirmed fraud convictions but reversed a portion of the restitution order.
The defendant purchased software from Novell, a software manufacturer, at discount prices, fraudulently claiming to be an education institution. He then resold the software to a Novell distributor, Network Systems, who itself was not authorized to purchase software from another firm than Novell.
The Court rejected Robertson’s challenge to the sufficiency of the evidence, pointing to the circumstantial evidence of fax transmissions.
The Court also affirmed the imposition of a sentence enhancement based on the use of "sophisticated means." The Court pointed to Robertson use of fictional entities to take advantage of discounted prices.
The Court also affirmed a restitution calculation, for payment to Novell, based on the wholesale prices of all the software Robertson purchased, minus the amount Novell obtained in a settlement of a lawsuit against Network Systems arising out of Network Systems’ sales of Robertson-supplied software. The Court noted that Robertson received a benefit when wholesale, not retail, prices were used. The Court also rejected as "baseless" the argument that the software was "unique," not "fungible" goods, for which replacement cost might be the right measure.
The Court, however, agreed with Robertson that he should not have been ordered to pay $125,000 in restitution to Network Systems. This amount represented the amount Network Systems paid Novell to settle a lawsuit brought by Novell against Network Systems for Network Systems’ unauthorized sales of Robertson-bought software. The Court found that too little was known about the nature of the lawsuit for this settlement to be deemed "reasonably foreseeable" to Robertson and thus owed in restitution.

Gore: Waiver of Miranda effective upon resumption of questioning

In Gore v. Sec. Dep’t of Corrections, No. 06-11522 (July 20, 2007), the Court denied habeas relief to a Florida death row inmate convicted of a 1988 murder.
Gore was first questioned by federal officials. This questioning ceased once he invoked his right to remain silent. Seven days later, questioning resumed by state officials, and Gore waived his Miranda rights. Seven hours of questioning ensued. Gore made incriminating statements during this questioning, which he then sought to suppress at trial. The Florida courts held that the statements were not obtained in violation of his rights.
On federal habeas review, the Court noted that AEDPA required it to defer to the Florida court’s determination unless it was an unreasonable application of Supreme Court caselaw. Here, Gore waived his right to silence and right to counsel before the second questioning occurred. The Court deferred to the Florida Supreme Court’s credibility determination which credited the testimony of the Florida officer who testified that Gore had not invoked his right to counsel. Further, the mere fact that counsel had been appointed in an unrelated case was not a "constructive invocation" of the right to counsel. The Court noted that the Sixth Amendment right to counsel was "offense-specific."

Ciszkowski: Silencer did not manipulate sentence

In U.S. v. Ciszkowski, No. 06-12592 (July 20, 2007), the Court affirmed the convictions and sentence of a defendant convicted of murder for hire, in violation of 18 U.S.C. § 1958 and possession of a firearm with silencer in furtherance of a crime of violence and drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii). The murder for hire offense carried a ten-year maximum; the silencer count carried a 30-year mandatory minimum. The trial court
The Court rejected the argument that the jury should have been instructed that, for the silencer count, it had to find that the defendant had knowledge of the silencer. The Court found that this was not an element of the offense, but a sentencing factor. The Court noted that someone who violated § 924(c) had already demonstrated a "vicious will," and that there was no risk of punishing an innocent actor by applying the silencer enhancement. Further, the silencer only increased the statutory minimum, not the statutory maximum, for a § 924(c) violation.
The Court also rejected Ciszkowski’s "sentencing manipulation" challenge to the reasonableness of his sentence. The defendant claimed that he had never seen the silencer that was hidden in the suitcase that was given to him by a government informant as part of the sting murder for hire. He claimed that the silencer had been put in the suitcase only to increase the mandatory minimum to 30 years. The Court recognized that "if the government provided a undetectably silenced weapon in a circumstance where the firearm or the silencer was completely unrelated to the accompanying criminal act, we might be inclined to find improper sentencing manipulation in such a case." Here, however, because the silencer was to be used for a murder for hire, a muzzled firearm was an appropriate weapon for the government to provide.

Campbell: Atlanta mayor not entitled to representation by convicted accomplice's counsel

In Campbell v. U.S., No. 06-13548 (July 13, 2007), the Court affirmed the conviction and 30-month sentence of a former mayor of Atlanta, Ga., convicted of tax fraud (though acquitted of all RICO and bribery charges).
The Court rejected the argument that, in violation of his right to counsel, Campbell was deprived of counsel of his choice when the trial court ruled that he could not be represented by a law partner of the lawyer who represented one of Campbell’s accomplices against criminal charges arising from the same corruption scheme. The Court noted that this accomplice refused to waive the attorney-client privilege. By disqualifying Campbell’s counsel of choice – to whom conflict was imputed by reason of his relationship to his law partner – the trial court legitimately preserved the fairness of the trial.
The Court also rejected Campbell’s challenge to his sentence, expressing surprise that Campbell believed he had been sentenced harshly when in reality the sentence reflected the district court’s decision, of "considerable leniency and restraint," to run concurrently sentences for separate counts of conviction. The Count found no undue reliance on acquitted conduct, pointing out that the sentence was within the limit authorized by the jury’s verdict. The Court also upheld the enhancement for using "sophisticated means," pointing out that Campbell hid his illegal moneys through use of "fictitious entities, corporate shells, or offshore financial accounts."
The Court also rejected a challenge to an obstruction of justice enhancement, finding no basis to overturn the district court’s credibility finding on this point.
Finally, the Court rejected Campbell’s "unreasonableness" challenge to his sentence. The Court pointed out that the 30-month sentence was far less than the statutory maximum for the sentence for which he was convicted, and even less close to the maximum for the statutes with which he was charged but acquitted. Therefore the sentence was not unreasonable, and did not reflect punishment for the acquitted counts.

Herring: Good Faith Exception applies to mistake in records of another county

In U.S. v. Herring, No. 06-10795 (July 17, 2007), the Court held that when officers in one jurisdiction check with employees of a law enforcement agency in another jurisdiction, and are – mistakenly, it turns out – told that there is an outstanding warrant for an individual, and the officers arrest the person, and a search yields contraband, the exclusionary rule does not require suppression of the evidence, because of the "good faith exception" of U.S. v. Leon, 468 U.S. 897 (1984). The mistake occurred because the agency in the other jurisdiction had failed to note in its records that the warrant had been recalled.
The Court rejected the government’s argument that the case was governed by Arizona v. Evans, 514 U.S. 1 (1995), where the good faith exception applied to a mistake by a court employee. Here the mistake was made by a law enforcement officer, and Evans did not reach such circumstances.
The Court, however, found that the policies recognized in Leon would be better served by not applying the exclusionary rule. First, the deterrent benefits of excluding the evidence would not be present. The person who mistakenly failed to record that Herring’s warrant had been recalled was "negligent." "Deterrents work best where the targeted conduct results from conscious decision making, because only if the decision maker considers the possible results of her actions can she be deterred." In addition, law enforcement agencies have inherent reasons to keep good records, which need not be supplemented by exclusionary rules. Further, no deterrent effect would be served, because officers in one jurisdiction have little concern about the prospect of frustrating prosecutions in another jurisdiction.
The Court noted that if faulty record-keeping became endemic in a particular county, officers in another county might have a "difficult time" establishing that their reliance on this county’s records was objectively reasonable.

Lewis: Olano is good law in the 11th Circuit

In U.S. v. Lewis, No. 06-11876 (July 17, 2006), the Court (en banc), in order to brings its Circuit caselaw in conformity with the 14-year old Supreme Court decision in U.S. v. Olano, 507 U.S. 725 (1993), held that, for error preservation on appeal, a "waiver" is an intentional reliquishment of a known right, whereas the simple failure to assert a right, without any affirmative steps to voluntarily waive it, is a "forfeiture." A waiver abandons the right to appellate review; forfeiture is reviewable under the plain error standard of Fed. R. Crim. P. 52(b).
Turning to whether plain error occurred, the Court found no error at all. Lewis claimed that a Double Jeopardy violation occurred when, after he pled guilty to some counts of the indictment, the prosecution subjected him to a trial on a remaining count to which he had not pled guilty – and for which one count to which he had pled guilty was a lesser-included offense. Double Jeopardy protects only against successive prosecutions, not simultaneous ones. Thus, the trial of Lewis for an offense that was part of the same indictment as the charges to which he pled guilty did not violate Double Jeopardy.

Walker: Batson violation remedy may be juror reinstatement

In U.S. v. Walker, No. 05-16756 (July 6, 2007), the Court affirmed convictions and sentences arising out of the prosecution of a Georgia state legislator for mail fraud.
The Court rejected the argument that the district court abused its discretion when, after the defendant exercised his peremptory challenges to eliminate four white male jurors from the venire, it granted the government’s Batson challenge, and reinstated the jurors to the jury pool. Though "somewhat troubled" by the district court’s finding that the defendant’s rationale for the strikes were "pretextual," in view of its different treatment of similarly-rationalized strikes, the court deferred to the district court’s finding of lack of genuineness, and likelihood of purposeful discrimination. The Court also deferred to the district court’s reinstatement remedy, noting the broad discretion as to the choice of remedy, and the "defensible approach" the district court took here.
The Court rejected a sufficiency of the evidence challenge to the mail fraud convictions. The Court noted that the honest services mail fraud statute is "extremely broad." Here, the evidence showed a scheme by Walker to enrich himself by using his legislative position as a bargaining tool to secure additional business for one of the businesses he owned. Walker’s own communications showed his belief that he was entitled to additional business in exchange for legislative assistance (even though, in reality, he influenced no actual legislation).
The Court also rejected Walker’s federalism arguments that a prosecution predicated on a non-criminal ethics provision – which required disclosure of business relationships - is unconstitutional, since only the state is entitled to criminalize such conduct. The Court noted that the jury was specifically instructed not to ground its verdict on state law. The jury’s verdict could have been unrelated to any state ethics requirement, but based only on a federal honest services mail fraud violation.
Turning to sentencing, the Court rejected a double counting challenge based on cumulative enhancements for abuse of trust and for a misrepresentation on behalf of a charity. The Court found that these enhancements involved different harms, to the charity, and to the charity’s donors. The Court also affirmed the supervisory role enhancement, albeit on different grounds than those stated by the district court.

Lozano: U.S. value ok for Latin American counterfeits

In U.S. v. Lozano, No. 06-11136 (July 9, 2007), the Court affirmed the sentences of defendants convicted of conspiracy to traffic in counterfeit goods in violation 18 U.S.C. §§ 371 and 2320(a).
At sentencing, the defendants contested the attribution of the loss amount, claiming that the correct loss computation should have reflected the value of the counterfeit items in the market in which those goods were sold, Latin America, not the retail price in the United States. The sentencing court stated that even if the loss calculation were erroneous, it would still have imposed the same 72-month sentence using its discretion under § 3553(a).
The Court found that the use of the value in the United States was not clearly erroneous.
The Court added that the sentence would still have been reasonable even if the calculation were erroneous because the variance above the otherwise applicable 21-27 month range was not unreasonable, in view of the "expansive, expensive, and extensive" nature of defendants’ scheme.

Williams: No Equitable Tolling for 2255 motion

In Williams v. U.S., No. 06-11415 (July 2, 2007), the Court held that, even assuming a Florida inmate’s earlier motion to correct an illegal sentence, recharacterized by the district court as a § 2255 motion, was not counted as a first habeas petition for purposes of the "second and successive" limitation of AEDPA, the inmate’s "second" petition should still be dismissed because it was barred by the statute of limitations.
The Court declined to apply the doctrine of equitable tolling. The Court noted that regardless of whether Williams viewed the dismissal of his first motion to correct sentence as foreclosing, or not foreclosing, other claims, this did not excuse his lack of diligence in filing his § 2255 motion within the limitations period. The Court noted that it had reached a similar result under similar facts in Outler v. U.S., 485 F.3d 1273 (11th Cir. 2007).

Jennings: No habeas relief for Florida death row inmate

In Jennings v. McDonough, No. 05-16363 (July 3, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1979 murder.
The Court found that Florida courts did not misapply the Brady v. Maryland test governing the suppression of evidence. As to one piece of exculpatory evidence, the Court found that Jennings was aware of it, and it therefore was not "suppressed." As to two others, they did not create a reasonable probability of a different outcome.
The Court also rejected Jennings’ ineffectiveness claim against his counsel, finding that the failure to call more witnesses regarding his intoxicated state would not have changed the outcome of the case.
The Court further rejected the argument that the Florida Supreme Court erred when it held that an admittedly erroneous (because unduly vague) instruction on the "cruel" nature of the crime was harmless error. The Court found that the Florida Supreme Court engaged in the correct harmless error analysis. Similarly, the Court found that any error in an instruction on an "aggravator" instruction was harmless, because the facts underlying this aggravator also supported the other aggravating factor that the jury based its death verdict on.

Zakreswki: Fraud on the Court is basis for Rule 60(b) motion

In Zakrewski v. McDonough, 06-12804 (July 3, 2007), the Court reversed the denial of relief under Fed. R. Civ. P. 60(b), to a Florida inmate who alleged that his former counsel perpetrated a fraud on the court when counsel fraudulently induced him to file a habeas petition on his behalf. The inmate claimed that a lawyer induced him to sign a first petition by saying that his claims were close to being time-barred, and was incompetent in his preparation of this petition.
Citing Gonzalez v. Crosby, 545 U.S. 524 (2005), the Court noted that where, as here, a movant does not assert (or reassert) allegations of errors in his state conviction, Rule 60(b) relief is available. The Court therefore reversed the district court’s ruling dismissing the Rule 60(b) proceeding. The Court, however, cautioned that Rule 60(b) sets high standards, and encouraged the district court to consider a number of factual issues in making its "fraud on the court" determination.

Knight: 611(a) Contains General Intent Mens Rea

In U.S. v. Knight, No. 05-14537 (July 3, 2007), the Court held that 18 U.S.C. § 611(a), which criminalizes improperly voting in a federal election, contains a "general intent" mens rea requirement and is therefore not impermissibly vague. It upheld the conviction of an alien who violated the statute by voting in the 2000 Presidential election.
The Court noted that the statute was silent as to intent, but the Court read a general intent requirement into the statute, which made the cime a constitutionally-sound general intent offense.
The Court also rejected Knight’s challenge to grand jury instructions which, he claimed, deprived the grand jury of the option not to indict. The Court noted that similar language had been approved in U.S. v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005). The Court also found the instructions were sound.

Henry: Not Ineffective Not to Put On Mental Health Experts

In Henry v. Sec. Dep’t of Corrections, No. 06-13821 (June 27, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1985 murder. The Court rejected the argument that counsel was ineffective for failing to call mental health experts at the penalty phase of Henry’s second trial for murder. The Court pointed out that after these experts testified at the first trial, the jury recommended the imposition of the death sentence. Further, one of the experts characterized Henry as a "very dangerous person." At the second trial, Henry’s new counsel elected not to call mental health experts, but to put on favorable testimony from persons who knew Henry well. The Court held that in these circumstances, it was not ineffective assistance to make the tactical decision not to call mental health experts.

Douglas: Gun in Secretive Position + Threat = "Otherwise Using"

In U.S. v. Douglas, No. 06-12854 (June 19, 2007), the Court affirmed the conviction and sentence of a defendant convicted of kidnapping, robbery and carjacking.
The Court rejected the argument that the trial court should not have admitted supplemental expert opinions from the government’s fingerprint expert regarding the age of a fingerprint found on a vehicle. The district court did not abuse its discretion, because of the expert’s extensive experience and training in fingerprint analysis. His testimony assisted the jury.
Reviewing for "plain error," the Court also rejected the argument that the trial court should have been allowed to call a witness to testify in person, finding no impact on Douglas’ substantial rights in light of the overwhelming evidence of guilt.
The Court also rejected the argument that the district court should have disallowed the victim’s in-court identification of the defendant, because of earlier misdescriptions. Noting the lengthy time the victim had to see the defendant during the commission of the crime, and the consistency of her other prior identifications, the Court found the in-court identification sufficiently reliable.
Turning to sentencing, the Court upheld the firearm "otherwise using" enhancement, in the face of a jury verdict which acquitted Douglas of the gun count. The Court found that the testimony that Douglas kept the gun pointed down in a "secretive location" (his groin), and the verbal threat to use the gun, suffice for the "otherwise using" enhancement.

Ogle: 7 of 8 habeas claims were exhausted

In Ogle v. Johnson, No. 06-11074 (June 15, 2007), the Court reversed the dismissal of a Georgia inmate’s federal habeas petition. The district court had dismissed the petition on the ground that the inmate had failed to raise the issues in his state postconviction proceedings. But the Court found that the record of these proceedings showed that the inmate had, in fact, raised seven of the eight issues in his prior state postconviction proceedings. The Court therefore remanded the case for further consideration of the habeas petition, except as to one unexhausted claim, which it found procedurally defaulted.

Thomas: Govt's Consecutive Sentence Recommendation Not in Breach

In U.S. v. Thomas, No. 05-16778 (June 1, 2007), the Court rejected the argument that the government’s statement during sentencing that the court give consideration to consecutive punishment violated its promises in the plea agreement.
In the plea agreement, the government agreed not to recommend a specific sentence, but reserved the right to present evidence and make arguments regarding the application of 18 U.S.C. § 3553(a). The presentence investigation report noted that for a number of identity theft offenses, the Guidelines gave the district court discretion as to whether to run sentences consecutively or concurrently. Prior to sentencing, the government noted that Thomas committed the offenses while on probation and recommended that at least one sentence run consecutively.
The Court held that the government did not breach its plea agreement when it recommended consecutive sentences, because it had reserved the right to make a recommendation regarding the application of the Guidelines and § 3553(a).

Presley: Unsworn Allegations Suffice for Summons to Supervised Release Revocation Hearing

In U.S. v. Presley, No. 05-16778 (May 31, 2007), the Court decided two consolidated appeals, affirming a district court’s imposition of a sentence on revocation of supervised release, and likewise affirming a conviction and sentence for unlawful possession of a firearm.
The Court rejected the argument that the district court lacked jurisdiction to sentence Presley for revocation of supervised release. Presley noted that the summons that was issued to him in connection with his revocation hearing was based on unsworn allegations, and that the hearing occurred after the term of supervised release expired. The Court found that these circumstances did not affect the district court’s jurisdiction. The Court found that a person on supervised release is in "constructive custody," and therefore enjoys less rights than a person who is free. Therefore, the absence of sworn allegations did not affect the district court’s jurisdiction.
The Court also rejected the defendant’s argument that he was erroneously denied a "necessity" defense for his unlawful gun possession charge. Presley claimed that he took the firearm from children who were playing with it and hid it the gun 30 minutes before his arrest. The Court pointed out that the defendant had a cell phone when he possessed the firearm, and therefore had an opportunity to notify police of his possession of a firearm, that is, he had a reasonable legal alternative to violating the law. Consequently, the necessity defense could not apply and the district court was not required to tell the jury otherwise.

Dean: Tax Evader 84-months sentence is reasonable

In U.S. v. Dean, No. 06-13946 (May 25, 2007), the Court affirmed the conviction and sentence of a tax protester defendant convicted of tax evasion.
The Court rejected the argument that the district court abused its discretion when it denied Dean’s motion challenging the district’s failure to comply with the grand and/or petit jury selection procedures of 28 U.S.C. § 1867(a). The Court agreed with the district court that the motion was untimely.
The Court also rejected the defendant’s challenge to the district court’s jury instructions on his "good faith" defense, finding that, even when coupled with a "willful blindness" instruction, they complied with Cheek v. U.S, 498 U.S. 192 (1991).
The Court also rejected a reasonableness challenge to Dean’s sentence, finding that the 84 month sentence was reasonable in light of the statutory maximum of 60 months for his tax evasion convictions and the 24 months maximum for his related convictions on other counts.

Amedeo: New Variances Differ From Old Departures

In U.S. v. Amedeo, No. 05-11806 (May 24, 2007), the Court affirmed a 120-month sentence imposed on resentencing, after an original 216-month sentence was vacated on a first appeal.
At his original sentencing, pre-Booker, the district court imposed upward departures based on findings that Amedeo committed the drug trafficking offense for which he was convicted in order to facilitate a sexual assault, that this resulted in the death of the person (infected by hepatitis C), and that Amedeo distributed drugs to multiple minors. On appeal, the Eleventh Circuit vacated the departures because they were not based on "relevant conduct."
At resentencing, post-Booker, the Court imposed a 120-month sentence – above the Guideline range of 37-46 months, citing the seriousness of the offense.
The Court rejected the argument that the sentencing judge should have recused himself. The Court noted that the judge’s opinion of Amedeo, formed by prior proceedings, was not the type of "personal" or "extrajudicial" bias that can support recusal.
The Court also rejected the argument that the law of the case doctrine precluded the district court at resentencing from relying on factors that the Court had found invalid on appeal. The Court noted that the law of the case doctrine does not apply when a change in controlling law occurs. Here, Booker constituted a change in controlling law. While the district court could no longer consider certain non-relevant conduct as the basis for a departure, it could consider this conduct as the basis for a variance under the Guidelines pursuant to 18 U.S.C. § 3553(a). [Note: this holding means that the scope of conduct which a district court can take into account post-Booker is even broader than the Guidelines concept of "relevant conduct"].
The Court further rejected the argument that 18 U.S.C. § 3742(g)(2), which prohibits sentencing courts from considering new grounds for a sentence on resentencing, precluded the district court’s reliance on new factors at resentencing. The Court noted that this statute took effect (shortly) after Amedeo’s original sentencing, was not retroactively applicable, and therefore could not be relied on by Amedeo.
The Court rejected the argument that the retroactive application of Booker violated the Ex Post Facto doctrine, noting its prior precedent so holding, and that the 40-year statutory maximum provided Amedeo sufficient warning of the penalty for his crime.
Finally, the Court rejected Amedeo’s reasonableness challenge to his sentence. The Court recognized that in at least one respect, the district court imposed an upward variance based on a factor (abuse of the attorney-client relationship) that had already served as the basis for a Guideline specific offense enhancement under USSG § 3B1.3. But based on the "extraordinary" circumstances of the case (presumably, the death of a victim) it was "reasonable" for the sentencing court to consider under § 3553(a) an aspect of Amedeo’s conduct that it had already considered in imposing an enhancement. [Note: the Court’s finding of "extraordinary" circumstances to justify the variance suggests that such "double counting" would only be valid if a departure-like justification for the sentence enhancement existed].

Quirante: Safety Valve Mandatory, Not Discretionary

In U.S. v. Quirante, No. 06-13527 (May 21, 2007), the Court vacated the sentence because the sentencing court erroneously believed that the safety-valve statute, 18 U.S.C. § 3553(f), merely gave it discretion to sentence a defendant pursuant to the Guidelines, instead of the mandatory statutory minimum. In reality, the safety-valve mandated a sentence pursuant to the Guidelines.
The statutory mandatory minimum for Quirante’s drug offense was 120 months. His advisory guideline range was 70-87 months. Quirante met all the requirements of the safety-valve. Nevertheless, the district court imposed a 120 month sentence, because it believed that the safety-valve was merely "discretionary," and it did not believe the defendant’s conduct warranted application of the safety-valve.
Reversing, the Court pointed out that the language of the safety-valve statute is mandatory, not discretionary. "The statutory language states that when a defendant . . . meets the five specified [safety-valve] requirements (as Quirante did), ‘the court shall impose a sentence pursuant to the guidelines.’ The word ‘shall’ does not convey discretion."
While remanding the case for resentencing, the Court expressed no view on whether a sentence higher than the 70-87 months advisory Guideline range would have been reasonable in the exercise of the sentencing court’s post-Booker § 3553(a) discretion. The Court also noted it was not addressing whether the safety-valve applies when the Guideline range is above the statutory minimum.

Ward: Conspiracy Acquittal Leaves Sufficient Support for Fraud Convictions

In U.S. v. Ward, No. 05-11622 (May 16, 2007), the Court affirmed the convictions and sentence of a defendant convicted of mail and wire fraud, in charges arising out of his involvement in a Ponzi scheme.
The jury acquitted Ward of the conspiracy count, but convicted him on substantive mail fraud counts. Ward argued that, in view the conspiracy acquittal, and of the fact that he did not "personally commit" each element of wire and mail fraud, the evidence on these counts was insufficient. The Court rejected this argument as contrary to law: "a defendant may be convicted of mail fraud without personally committing each and every element of mail fraud, so long as the defendant knowingly and willfully joined the criminal scheme, and a co-schemer used the mails for the purpose of executing the scheme." Here, the government presented "more than enough evidence" to establish Ward’s knowing participation in the fraud scheme.
The Court also rejected the argument that the trial court constructively amended the indictment by instructing the jury that it could convict Ward on the mail and wire fraud even if it could not reach a verdict on conspiracy. Ward pointed out that each of the substantive counts charged that unlawful acts were undertaken for the purpose of executing the conspiracy. The Court pointed out that these counts also alleged that the acts were undertaken for the purpose of obtaining money by false pretenses. Further, conspiracy and substantive fraud are separate offenses. The "surplusage" of the indictment could be deleted without causing legal error. The deletion of the conspiracy language did not alter the mens rea for the offense, and did not broaden the bases for conviction.

Martinez: Physical Contact suffices for more serious assault than simple assault

In U.S. v. Martinez, No. 06-13429 (May 17, 2007), the Court affirmed a defendant’s conviction for forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1). The offense arose out of the defendant-inmate’s striking a correction officer with what was or appeared to be urine.
The defendant challenged the jury instruction that a forcible assault "means an assault which results in physical contact which does not involve a deadly weapon or bodily harm." The defendant claimed that the more serious level of assault with which he was charged under § 111(a)(1) – more serious than "simple assault" – required a finding of a threat to inflict serious bodily injury. The Court rejected this argument, finding that an assault with actual physical contact suffices to prove more than just simple assault.
The Court rejected Martinez' challenge to the restitution order, which required him to pay the corrections officer $1,801.63 for the medical tests the officer paid for after the assault. The Court noted that restitution was authorized under the Mandatory Victims Restitution Act.

Llanos-Agostadero: Battery on Pregnant Woman is "Crime of Violence"

In U.S. v. Llanos-Agostadero, No. 06-14382 (May 15, 2007), the Court held that a Florida conviction for the offense of aggravated robbery on a pregnant woman qualified as a "crime of violence" for purposes of the 16-level sentence enhancement of USSG § 2L1.2(b)(1)(A)(ii).
The Court noted that the Florida offense involved actual and intentional touching or striking another person, or intentionally causing bodily harm to another person. Citing analogous cases involving analogous battery offenses, the Court concluded that the battery offense at issue constituted a crime of violence.
The Court also rejected a reasonableness challenge to the sentence based on the unavailability of the Attorney General’s "fast-track" program in the district in which the defendant was sentenced. Citing U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006), the Court noted that the fast-track program does not create unwarranted disparities in sentences, or sentences "greater than necessary to achieve the purposes of § 3553(a).

Johnson: Obstruction convictions and enhancement affirmed

In U.S. v. Johnson, No. 06-13564 (May 11, 2007), the Court affirmed obstruction of justice convictions of a defendant who lied about his communications with a Marathon, Florida landowner about plans to illegally fill the water on his property.
The Court rejected Johnson’s argument that the evidence was insufficient to convict since the government was still able to convict the landowner of environmental violations. The Court noted that the statutes criminalize the interference with the administration of justice, and the tendency to influence the government in its decisionmaking process.
The Court also rejected Johnson’s challenge to his sentence enhancement, under USSG § 2J1.3(b)(2), for perjury which resulted in "substantial interference with the administration of justice." The government’s claim was not that the costs of investigating Johnson’s conduct were high, but that the costs of investigating the landowner’s offense were greater as a result of Johnson’s obstruction. The Court noted that the government was forced to expend additional resources to contact other witnesses. The Court concluded that the sentencing court’s finding was not "clearly erroneous."
Finally, the Court rejected a "reasonableness" challenge to Johnson’s 24-month sentence. This sentence, at the low end of the guideline range, was not unreasonable.

Medina: Kickback is not in and of itself Fraud

In U.S. v. Medina, No. 05-14864 (May 11, 2007), the Court, on an appeal of convictions of Medicare Health Care Fraud and money laundering, reversed all convictions of one defendant, reserved some convictions of co-defendants, and vacated the sentence for incorrect loss calculations.
The scheme involved bringing patients to the defendants’ pharmacies in exchange for illegal kickbacks for patients and doctors. No evidence indicated, however, that Medicare was billed for unnecessary medical procedures. A confidential informant met with the defendants to exchange, for a fee, their checks for cash, but admitted on cross-examination that one defendant, Medina, a secretary, was always sent out of the room to avoid her hearing them talk about the kickback scheme.
As to the secretary, the Court found the evidence was insufficient to sustain her convictions. The Court noted that the fraud offense was based on making a knowingly false statement to Medicare. Here, the false statement would have been the pharmacies’ written promise to abide by Medicare’s regulations, including its prohibition on kickbacks. However, no evidence established the secretary’s awareness of the kickbacks.
As to the other defendants, none of the counts of convictions that predated the statement to Medicare could be sustained. The kickbacks, in and of themselves did not constitute fraud, and those which occurred before the statements were not the subject of a false statement. The Court rejected the government’s reliance on other evidence as proof of fraud, including its argument that it did not call certain witnesses to establish an element of the offense because they would not make "ideal witnesses." "The government cannot ignore [its] burden [of proof] simply because the witnesses who can establish the required elements are less than ideal."
The Court also vacated the money laundering counts which related to the fraud counts it had set aside, since money laundering involves the proceeds of activity known by the defendants to be illegal. The Court, however, upheld money laundering convictions as to the principal of the crime, finding that the acts occurred after she signed documents certifying (falsely) that she would follow Medicare regulations.
As to the general conspiracy charge, under 18 U.S.C. § 371, the Court upheld the convictions of two defendants, but again vacated the secretary’s conviction, finding that her lack of awareness of the kickback conspiracy, and of the conspiracy’s other objectives, left insufficient evidence to convict.
Turning to sentencing, the Court noted that the district court failed to make a sufficient loss calculation, and instead sentenced the defendants for the entire amount Medicare was billed in the period, without explanation. However, in the absence of evidence of Medicare’s payment of unnecessary medical claims, or that the patient kickback scheme resulted in any actual loss to Medicare, this calculation was inadequate. The Court therefore remanded the case for resentencing.

Edouard: No Erroneous Failure to Appoint Interpreter

In U.S. v. Edouard, No. 05-15808 (May 11, 2007), the Court affirmed the convictions and sentences of defendants involved in large-scale cocaine-trafficking between Haiti and the U.S.
The Court rejected Edouard’s argument that he was unfairly denied the assistance of a Haitian Creole interpreter during trial. The Court cited portions of the transcript which undercut Edouard’s claim of a language barrier.
The Court also rejected the Batson challenge to the exclusion of certain jurors. The Court faulted the district court for summarily overruling Edouard’s Batson objections, but ultimately found no error in view of the prosecution’s forthcoming statement of his reasons for exercising his strikes.
The Court found no Rule 404(b) violation in the admission of evidence of drug-trafficking in years prior to the charged conspiracy. The Court found that this evidence properly established the defendant’s "intent." The Court also found no error in the admission of evidence that the defendant had threatened to kill a person if money was not returned to him. The Court found that this threat was an integral part of the money laundering charge.
The Court further rejected the argument that the case involved not a single, but multiple conspiracies. The Court noted the common goal of the conspiracy (drug-trafficking) and the overlap of participants.
The Court found sufficient evidence to sustain several specific money laundering counts, noting that separate transactions were part of the scheme, and each gave rise to a separate count.
Finally, the Court rejected the argument that the sentencing should have been postponed after new counsel was hired to represent Edouard, noting that the defendant waited two weeks after new counsel made an appearance before seeking a continuance. Further, this counsel’s untimely objections to the PSI were properly not considered, because he waited 20 days after substitution of counsel before filing them late.

Jordan: Actual Innocence not basis for habeas relief

In Jordan v. Dep’t of Corrections, No. 05-14736 (May 14, 2007), the Court held that the district court properly dismissed a second and successive habeas petition. The Florida state inmate’s petition claimed that his confession was involuntary, and asserted a claim of "actual innocence" based on newly obtained evidence. As to the involuntary confession claim, the Court found that it was not based on newly discovered evidence, and therefore did not meet the requirements of a second and successive habeas petition. As to the actual innocence claim, the Court found that this claim had not been preserved in the appeal briefs, and in any event, precedent forbade granting relief based upon a claim of actual innocence.

Mauk: Dismiss w/o prejudice to let habeas petitioner exhaust

In Mauk v. Lanier, No. 06-12137 (Apr. 23, 2007), the Court affirmed, on failure to exhaust grounds, the denial of habeas relief to Georgia prisoner who argued that the Georgia appellate court which affirmed his Georgia conviction ran afoul of his Sixth Amendment right to jury trial when it determined that the outdoor area in which Mauk committed an act of sodomy was not a "private place" and therefore ran afoul of the Georgia statute which criminalized sodomy in a "public place."
Without reaching the merits of Mauk’s Sixth Amendment argument, the Court found that Mauk had not exhausted this argument in the Georgia courts. The Court remanded the case with instructions to dismiss the petition without prejudice, in order to give Mauk an opportunity to exhaust his argument in the Georgia state courts.

Livesay: Probation unreasonable for key HealthSouth fraud participant

In U.S. v. Livesay, No. 06-11303 (April 19, 2007), the Court reversed as unreasonable a sentence of probation on a defendant convicted of involvement in HealthSouth’s "$1.4 billion dollar securities fraud."
The Court found that the district court’s § 5K1.1 downward departure was excessive. The advisory guidelines range was 78-97 months. Livesay was a "key" participant in the offense. Citing U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006), in which it also reversed a low sentence for another important participant in the HealthSouth fraud, the Court noted that valuable cooperation "is not a get-out-of-jail free card." Livesay, moreover, did not withdraw from the conspiracy until after it was discovered. A probation sentence fails to deter other white collar criminals. Although Livesay was below Martin in the HealthSouth hierarchy, he still has "power." Further, Livesay personally profited from the fraud for several years.

Garcia-Jaimes: Can't Possess Atlanta Weapon While in Texas

In U.S. v. Garcia-Jaimes, No. 05-14475 (April 19, 2007), the Court affirmed drug trafficking and money laundering convictions against multiple defendants, but reversed one gun possession conviction.
As to the money laundering convictions, the Court rejected the argument that the evidence was insufficient because the government only established that drug money was hidden from the police inside cars loaded on the car hauler destined from Mexico, and never showed that any funds were actually transported outside the United States. The Court stated that hiding money inside cars on car hauler trailers was an attempt to conceal the money’s association with an illegal enterprise. This sufficed for purposes of establishing guilt under 18 U.S.C. § 1956(a)(2)(B)(i).
The Court reversed one defendant’s gun possession conviction. This defendant stayed in Texas or Mexico at all relevant times; the weapons were seized in Atlanta. Thus, this defendant was not in a location where he exercised possession over the weapons.

Orisnord: Fleeing is a "Crime of Violence"

In U.S. v. Orisnord, No. 05-14659 (Apr. 11, 2007), the Court rejected challenges to the sufficiency of the evidence by defendants convicted of charges arising out of a staged home invasion robbery of drugs. As to one defendant, the Court accepted, without elaboration, the government’s concession that the evidence was insufficient only as to the firearms convictions.
The Court rejected the argument that the Confrontation Clause was violated when the court did not permit additional questioning of an ATF agent regarding his tactical methods. The court found that the questioning which was permitted sufficed to assess the agent’s credibility.
The Court further affirmed the denial of requests to conduct post-verdict interviews of specific jurors regarding juror impropriety. The Court found that the improprieties at issue did not warrant further inquiry.
Turning to the sentences, the Court held that the crime of fleeing and eluding law enforcement officers qualified as a "crime of violence" for purposes of the career offender sentence enhancement provisions of the guidelines. Noting the "serious potential risk" posed by fleeing law enforcement, the Court joined several other circuits (except the Ninth) to hold that fleeing constitutes a "crime of violence." Finally, the Court found the 420-month sentences "reasonable."

Ohayon: Acquittal on key factual issue precludes retrial on related count

In U.S. v. Ohayon, No. 05-17045 (April 12, 2007), the Court (Pryor, Birch, Nanble b.d.) held that the government was collaterally estopped from retrying Ohayon on the charge of conspiracy to possess ecstacy with intent to distribute, a count for which the jury was unable to reach a verdict, when the jury had acquitted him, in the same transaction, of the charge of attempted possession with intent to distribute.
Citing Ashe v. Swenson, 397 U.S. 436 (1970), the Court noted that the collateral estoppel inquiry focused on whether a rational jury could have grounded its acquittal on a factual issue other than that which the defendant seeks to foreclose from consideration, taking account of the pleadings, evidence, charge and other relevant matter. Here, Ohayon’s only defense was that he was unaware that the bags he picked up contained drugs. The jury’s questions to the court during deliberations focused on this issue. The evidence supported the defense. Hence, this issue was resolved in Ohayon’s favor with the attempt acquittal at the first trial, and this foreclosed his subsequent conviction on the conspiracy count.
The Court rejected the government’s argument that the very existence of a partial verdict itself meant that the jury must have rested its acquittal and non-decision on different grounds. The Court noted that the precedent upon which the government relied postdated U.S. v. Larkin, 605 F.2d 1360 (5th Cir. 1979), and was inconsistent with Ashe. In addition, one cannot impute a single, rational basis to a mistried count, since, by definition, the jury failed to reach agreement on that count.
The Court rejected the argument that knowledge of the contents of the bags in question was not an essential element of the conspiracy charge. Conspiracy requires proof that the defendant knew the essential nature of the conspiracy, which in this case meant he was aware of the contents of the bags.
The Court distinguished U.S. v. Brown, 983 F.3 201 (11th Cir. 1993). Brown stated that an "identity" of legal issues must exist in order for collateral estoppel to apply. The Court acknowledged that no identity of legal issues existed in Ohayon’s case, because attempt and conspiracy have different elements. But Brown’s "identity" requirement was unnecessary to its holding. Further, Brown departed from earlier precedent, which focused on factual, not legal identity of issues. Finally, Brown has not been followed in subsequent cases.

Garey: Right to Counsel is "Preeminent" vs Self-Representation

In U.S. v. Garey, No. 05-14631 (Apr. 11, 2007), the Court (2-1) set aside the defendant’s guilty plea because the district court violated his right to counsel.
At the plea colloquy, the defendant asked to be relieved of appointed lawyer, whom he felt had a conflict because he was one of the victims of the defendant’s alleged crime – which involved threats of using a weapon of mass destruction. The trial court told the defendant he could only proceed without this lawyer if he represented himself. The defendant said he would go forward with self-representation involuntarily, because he wished to be represented by counsel – but not by his current court-appointed lawyer.
Noting the difficulty of reconciling the right to counsel and the right to self-representation, the Court noted that the right to counsel is the "preeminent" of the two. Consequently, a defendant must clearly invoke the right to self-representation. Here, Garey did not do so, because he stated that he would only proceed without representation "involuntarily." Accordingly, the Court vacated Garey’s guilty plea and remanded the case.

Lett: No Rule 35(a) authority to modify sentence where error was not "clear"

In U.S. v. Lett, No. 06-12537 (Apr. 6, 2007), the Court held that a sentencing "error" was not "clear" enough (if sentencing error even occurred) to authorize the district court’s correction of a sentence pursuant to Fed. R. Crim. P. 35(a).
The defendant, a war veteran who had served the country with distinction, was convicted of drug trafficking. His guideline sentence was 70 months. The statutory mandatory minimum was 60 months. The defendant sought a safety-valve reduction below the mandatory minimum – and the guideline sentence. Believing that it was not authorized to sentence below the mandatory minimum when the Guideline range was above the mandatory minimum, the district court imposed a 60-month sentence. A motion was then filed under Rule 35(a), arguing that post-Booker, the court was in fact authorized to grant the defendant a safety-valve sentence. The district court noted that the answer to this question was "not clear" because of the lack of applicable caselaw. It decided to modify the sentence, and imposed a sentence of time served, in effect, eleven days.
Reversing, the Court of Appeals pointed out that to show "clear error" under Rule 35(a), a party had to show "obvious errors." Here, the error was not obvious, because the district court merely misunderstood (at most) its sentencing discretion, but still imposed a permissible sentence under the Guidelines and applicable statutes. "Arguable error is one thin, and clear error is another." In the absence of caselaw on point in the Circuit, no clear error occurred. The Court remanded with instructions to impose the original 60 months sentence.

Robbins: Conviction becomes final after sentence becomes final

In Robbins v. Sec. Dep’t of Corrections, No. 05-14992 (Apr. 3, 2007), the Court reversed the dismissal on untimeliness grounds of a § 2254 habeas petition. Accepting the State’s confession of error, the Court ruled that a conviction is not final until affirmed on direct appeal. Here, the state court imposed a sentence on resentencing, and Robbins’ statute of limitations began to run after this sentence became final, subsequent to his conviction.

Clay: 60-month sentence ok for extraordinary rehabilitaton.

In U.S. v. Clay, No. 06-10088 (Apr. 3, 2007), the Court (Carnes, Pryor, Farris b.d.) affirmed the imposition of a 60-month sentence on a defendant convicted of methamphetamine trafficking, when the advisory Guidelines range was 188-235 months.
The Court first rejected Clay’s challenge to the denial of his motion to suppress. The Court found that the police had reasonable suspicion to pat-down Clay’s person when they saw a shotgun in plain view. The search of Clay’s pocket was also reasonable, because the object the officer felt in Clay’s pocket felt like a screwdriver that might be used as a weapon (it turned out to be an empty barrel from a ball-point pen, which is used for ingesting narcotics).
The Court held that the district court did not err in relying on acquitted conduct in enhancing Clay’s sentence. The resulting increase in the sentence – 3.7 times the bottom of the Guideline range – was not so extraordinary as to violate Due Process.
Rejecting a government appeal, the Court held that the sentence was not unreasonable. The Court reiterated that extraordinary reductions from the Guidelines based on § 3553(a) "must be supported by extraordinary circumstances." Here, the district court found extraordinary rehabilitation in the time after Clay’s indictment, and before his conviction. Clay worked a second job, inspired fellow drug addicts to overcome their addiction, and visited a juvenile detention center to encourage young people to change their lives.

Lindsey: Tip with corroborration sufficient for detention

In U.S. v. Lindsey, No. 05-11273 (March 27, 2007), the Court (2-1, Barkett, J., dissenting), the court affirmed the conviction and 300-month sentence of a defendant convicted of being a felon in possession of one or more rounds of ammunition.
The Court affirmed the denial of a motion to suppress, finding that there was sufficient reasonable suspicion of criminal behavior to justify the defendant’s detention. The police received a tip from a person who identified himself as "Davis" reporting that four black males were loading guns and putting them in a large white SUV parked at a gas station across from a bank. The police had been investigating a series of armed bank robberies by three or four blacks who entered banks with assault weapons and drove SUV-type vehicles. The police went to the scene and saw a white Ford SUV parked behind the gas station, with four black occupants, which moved when a police vehicle came into view. The police shouted to the individuals to get on the ground. Police converged. The defendant was arrested.
The Court distinguished Florida v. J.L., 120 S.Ct. 1375 (2000), finding that the police here had more than an inchoate and unparticularized suspicion based on an anonymous tip. The tip was consistent with an ongoing investigation. Further, the movement of the SUV when the police vehicle came into view gave rise to further suspicion.
The Court further found that probably cause supported the defendant’s subsequent arrest. After the police had detained the four occupants of the SUV, an armored car pulled up to the bank, and guards loaded money into it. The four men were convicted felons. Peering through the tinted windows the SUV, police saw what they believed was a rifle bag.
The Court further rejected defendant’s challenge to the search of the vehicle, noting the applicability of the automobile exception to the warrant requirement.
The Court found no Brady violation in the destruction of a fingerprint card which, the police claimed, contained no valuable information.
Finally, the Court affirmed the district court’s admission of uncharged criminal activity, namely defendant’s plan to rob a bank, at trial. This evidence was "inextricably intertwined" with the charged conduct.
Finally, the Court found no error in the 300-months sentence reliance on uncharged criminal activity, or on prior convictions.