Eleventh Circuit Court of Appeals - Published Opinions

Friday, July 27, 2007

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.

Wednesday, July 25, 2007

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."

Tuesday, July 24, 2007

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.

Tuesday, July 17, 2007

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.

Tuesday, July 10, 2007

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.

Monday, July 09, 2007

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.

Thursday, July 05, 2007

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.