Evans: Enticing Commercial Sex is Interstate Commerce

In U.S. v. Evans, No. 06-10907 (Jan. 30, 2007), the Court held that the facts alleged in an indictment for enticing a minor to engage in commercial sex sufficed to establish the interstate jurisdictional nexus.
The defendant claimed that all the conduct that related to his using a minor in commercial sex occurred in South Florida. Disagreeing, the Court pointed out that the Supreme Court upheld a federal criminalizing the purely intrastate growing of marijuana for medicinal purposes, on the ground that this was justified by Congress’ need to broadly regulate interstate commerce in this controlled substance. Here, Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce, and the Court found that this finding was not irrational. Evans’ acts in South Florida contributed to the market that Congress’ comprehensive plan sought to stop. The Court further noted Evans’ use of hotels which service interstate travelers, and use of condoms that traveled in interstate commerce further evidence the substantial effects on interstate commerce.
The Court further rejected Evans’ argument that he had not used instrumentalities of interstate commerce, pointing out that he had used a cell phone, and that cell phones are by their very nature interstate instrumentalities – even in the absence of evidence that they were used to make out-of-state calls.

Hassoun: Padilla Count Reinstated

In U.S. v. Hassoum, No. 04-60001 (Jan. 30, 2007), the Court (Edmondson, Tjoflat, Gibson b.d.) reinstated a count of the indictment which had been dismissed by the district court on multiplicity grounds.
The indictment charged three interrelated offenses: violating 18 U.S.C. § 956(a)(1) by conspiring to commit acts of murder, kidnapping and maiming; violating 18 U.S.C. § 2339A(a) by providing material support and resources in preparation for a violation of § 956(a)(1); and violating 18 U.S.C. § 371 by conspiring to violate § 2339A(a).
The Court noted that multiplicity challenges are reviewed under Blockburger v. U.S., 284 U.S. 299 (1932), which holds that cumulative punishment may not be imposed under several statutes unless each statutory provision requires proof of an additional fact that the other does not.
The Court found that the legislative history regarding § 2339A(a) did not shed light on the question, and that it would therefore examine the elements of the statutes at issue.
The Court pointed out that the Blockburger analysis typically does not turn on the specific facts alleged in the indictment. Here, each of the three counts charged a separate statutory violation, and none merged into another as a lesser-included offense. The § 956(a)(1) count required proof that the defendant conspired to commit acts constituting murder, kidnapping and maiming, the § 371 count required proof of a conspiracy to provide material support in violation of § 2339A(a), and the § 2339A(a) count required proof of providing material support for a violation of § 956(a)(1). As a result, the counts were not multiplicitous.
The Court recognized a scenario in which a complete overlap would exist between the conspiracy counts of the indictment, for example, if the government proved that the defendants provided material support intending that it be used to violate § 956(a)(1), in which case the same evidence would support proof of two offenses (§ 2339A(a) and § 956(a)(1)). But this "mere possibility" did not alter the analysis. The question was: "does a scenario exist where the hypothetical defendant might violate one section without violating the other?" Here this scenario existed, because the defendants might have provided material support in preparation for the § 956 conspiracy, but without being guilty of the § 956 conspiracy. Hence, no multiplicity problem arose. [Cf. Double Jeopardy-Post Blakely, 41 Am. Crim. L. Rev. 1373 (2004) (Double Jeopardy should ask whether a person’s actual blameworthy conduct is being punished twice, not whether two provisions in the abstract are "conceptually distinct")].

Ivory: Second degree rape is "crime of violence"

In U.S. v. Ivory, No. 06-10895 (Jan. 17, 2007), the Court held that a second degree rape conviction under Alabama State law counted as a "crime of violence" for purposes of the career criminal enhancement of the Guidelines. Second degree rape is sex with a person under the age of 16.
The Court noted that the definition of "crime of violence" involved the use of "physical force." The Court further noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Under Alabama law, a person under the age of 16 is deemed to be incapable of giving consent to sexual penetration. Consequently, the Court concluded that second degree rape involved the use of physical force.
Alternatively, the Court found that second degree rape presented a risk of the use of physical force, and therefore qualified as a "crime of violence." The Court recognized a Circuit conflict on this aspect of its holding.

Turner: Bruton violation harmless; 240-months ok for theft

In U.S. v. Turner, No. 05-14388 (Jan. 11, 2007), the Court affirmed theft convictions, and a 240-month sentence for said convictions.
The Court recognized that Bruton errors occurred when the trial court allowed two witnesses to testify about statements made by the defendant’s co-defendant spouse – statements which incriminated the defendant. However, because defense counsel failed to contemporaneously object, the Court reviewed the matter for plain error. In light of the ovewhelming evidence of guilt, the Court found no violation of Turner’s substantial rights, and therefore no plain error.
The Guideline sentence was 51-63 months, but the sentencing court imposed a 240-month sentence, exercising its discretion under 18 U.S.C. § 3553(a). The court based its decision on recorded phone conversations in which a co-defendant said he would have murdered the federal agents had he been present at the time of the arrest. The co-defendants also discussed how if they’d escaped they could have left the country. Reviewing the sentence for reasonableness, the Court found that the district court’s finding regarding a lack of remorse, and the other § 3553(a) factors it addressed, supported the 240-month sentence.

Newsome: Public Safety Exception Justifies Gun Seizure

In U.S. v. Newsome, No. 06-11181 (Jan. 16, 2007), the Court (Birch, Pryor & Covington b.d.) held that the public safety exception to Miranda and to the Fourth Amendment applied, and therefore affirmed the denial of a motion to suppress a gun.
The defendant was arrested in a motel room, in which police thought he was hiding with a girl friend. Upon arrest, and placing the defendant in handcuffs, the police asked him if there was "anything or anyone in the room that [police] should know about." Newsome told police he had a gone "over there" and led the police to a bag where the pistol was located. This exchange all occurred before the defendant was given his Miranda warnings.
The Court held that the "public safety" exception of New York v. Quarles, 467 U.S. 649 (1984) applied. The police were under the impression there was someone else in the room, and thought they were in danger. The police were entitled to "neutralize" the threat by finding the gun.
The Court also found no Fourth Amendment violation, because exigent circumstances necessitated the gun’s seizure.
The Court also rejected Newsome’s attempt to obtain a new trial based on the prosecutor’s violation of a court order when, despite a court order not to refer to a statement by Newsome’s wife that he had shot her, the prosecutor mentioned this statement in his opening statement. The Court noted the trial court’s curative instruction and the independent evidence of guilt which made any error harmless.

Odili: Treaty Transfer sentence upheld

In Odili v. U.S. Parole Comm’n, No. 05-12717 (Jan. 10, 2007), the Court rejected a defendant’s challenge to the sentence imposed by the U.S. Parole Commission, pursuant to a treaty transfer, on a U.S. citizen transferred from Panama after serving two years of his 100-month sentence for drug trafficking. The Parole Commission had reduced the sentence to 81 months total time, to be followed by a period of 60 months supervised release or up to a total which, combined with the term of incarceration, would equal the original 100 month sentence. The Parole Commission’s sentence reduction from 100 to 81 months reflected in part Odili’s mistreatment while in a Panamanian jail, and his substantial assistance to authorities.
The Court rejected Odili’s claim that his testimony established that he was entitled to a mitigating role downward sentence adjustment. Citing U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), the Court noted that the Parole Commission was free to reject Odili’s testimony for lack of credibility.
The Court also rejected the argument that the Parole Commission should have also reduced the term of supervised release when it reduced the term of incarceration. The Court found no violation of any statute in the Commission’s failure to do so.
The Court rejected Odili’s change to the drug quantity determination, noting that Odili had admitted the quantity.
Finally, the Court rejected the argument that the Parole Commission erred in treating the Guidelines as mandatory, post-Booker. The Court agreed that a Parole Commission treaty transfer sentence determination should treat the Guidelines as advisory. However, the Court found that the Parole Commission had in fact treated the Guidelines as advisory. Further, rejecting Odili’s contrary contention, the Court found the sentence to be reasonable.

Perez: Defendant Statements to Pre-Trial Services Are Inadmissible to show guilt

In U.S. v. Perez, No. 05-12971 (Dec. 28, 2006), the Court rejected the argument that a Brady violation occurred when the government failed to disclose to the defendant that it had promised to reduce his wife’s sentence in exchange for her testimony against him. The Court noted that Perez was aware of the reasons his wife testified at trial.
The Court also rejected the argument that Perez should have been given a continuance before trial in order to have more time to examine recordings that were disclosed five days before trial. The Court said that counsel was able to spend 20 hours reviewing the recordings which was sufficient time for him to notice any helpful statements for the defense.
The Court agreed with Perez that the district court in allowing a pre-trial services officer to testify for the prosecution, in violation of 18 U.S.C. § 3153(c)(3), which requires materials disclosed to this officer to remain confidential. Such information cannot be admitted at trial if it goes "to the issue of guilt." Here, the government called the officer to establish Perez’ cell phone number, and his involvement in illegal drug transactions. However, the Court found no "plain error" because other evidence properly admitted at trial independently established Perez’ cell phone number.

Campbell: Jones procedures apply for supervised release revocation

In U.S. v. Campbell, No. 06-12578 (Jan. 3, 2007), the Court held that U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990) applies to supervised release revocation proceedings, and that accordingly a district court after imposing sentence should elicit fully-articulated objections to the court’s findings of facts and conclusions of law, and the manner in which the sentence was imposed.
At the conclusion of Campbell’s supervised release revocation proceedings, after imposing a 24 months sentence, the district court simply asked "Is there anything further?" The Court never discussed the advisory Guidelines during the proceeding.
The Court vacated the sentence, finding that the district court had failed to elicit objections to the sentence, and that based on the record the Court could not determine whether the district court had considered the range established under the Guidelines. The Court therefore also could not determine whether the sentence was reasonable, and vacated the sentence and remanded the case for resentencing in accordance with Jones.