Svete: Mail Fraud Instruction Defective

In U.S. v. Svete, No. 05-13809 (March 26, 2008), the Court reversed mail fraud convictions for two defendants based on an erroneous jury instruction, but otherwise rejected the defendants’ challenges to their convictions and sentences. The case arose out of an $80 million fraud on investors in life insurance benefits.
Citing U.S. v. Brown, 40 F.3d 1218 (11th Cir. 1994), the Court rejected challenges to the sufficiency of the evidence, pointing out that both defendants had testified in their defense, and that the jury was therefore free to believe of the opposite of their testimony.
The Court, however, agreed that the mail fraud jury instruction was defective because, though directly copied from the Pattern Jury Instruction, it failed to instruct, as the caselaw provided, that a scheme was "reasonably calculated to deceive persons of ordinary prudence and comprehension." The inaccuracy impaired the defendants ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. The Court therefore reversed the mail fraud convictions.
The Court rejected Giglio-based challenges to the trial. A prosecution witness lied on the witness stand about not having been previously incarcerated. However, the Court found that the violation was not "material," because the defendant decided not to pursue this line of impeachment, and because other impeachment of the witness was successful, and because this witness’ testimony was otherwise corroborated by other witnesses.
Finally, the Court rejected the challenge to the determination of a loss over $80 million for sentencing purposes.

McNeil: Extraordinary Attorney Negligence Tolls AEDPA period

In Downs v. McNeil, No. 05-10210 (March 24, 2008), the Court held that equitable tolling may apply to a Florida death row inmate’s otherwise untimely federal habeas petition.
The Court recognized that a showing of "ordinary" attorney negligence would not suffice to equitably toll AEDPA’s statute of limitations. Here, however, Downs showed "extraordinary" negligence and even wilful misconduct, including an instance where an attorney lied to him about having filed a document that would have tolled the running of his limitations period. In view of the "extraordinary circumstances" presented, the Court remanded the case for an evidentiary hearing to determine whether equitable tolling applied.

Maupin: Florida nolo contendere w/ adjudication withheld counts as prior conviction

In United States v. Maupin, No. 07-03341 (March 24, 2008), the Court held that a child pornography offender’s prior Florida nolo contendere plea with adjudication withheld to Florida child pornography charges counted as a prior conviction for purposes of the sentencing enhancement under 18 U.S.C. § 2252(A)(b)(1) and (b)(2).
The statute provided for enhancements for prior convictions "under the laws of any State." Maupin argued that under Florida state law, a nolo contendere plea with adjudication withheld is not considered a conviction, and that this plea should therefore not count under the federal statute. The Court rejected this argument, holding that as it had held with respect to the federal drug statute, the meaning of the word "conviction" has a federal meaning, unless Congress specifically provides otherwise. Under federal law, a nolo contendere plea with adjudication withheld counts as a prior conviction. Thus, Maupin’s prior nolo contendere plea with adjudication withheld counted as a prior conviction for federal sentencing purposes. The Court therefore affirmed the 480-month sentence.

Devine: No further duty to consult about appeal

In Devine v. U.S., No. 07-11206 (March 20, 2008), the Court held that defense counsel was not ineffective for failing to file a notice of appeal.
The defendant pled guilty. The plea was valid. His plea included an appeal waiver. The waiver provided that the only issue he could appeal was the legality of his sentence. The low-end Guideline range sentence was legal.
The defendant claimed that counsel failed to fully inform him about the advantages and disadvantages of an appeal. The Court assumed arguendo that counsel did not fully discuss the advantages and disadvantages of an appeal, but still found no ineffective assistance of counsel. First, the factual record below showed that the defendant did not reasonably demonstrate to counsel that he was interested in appealing. Second, no rational defendant would want to appeal in these circumstances. Thus, counsel had no duty to consult further with the defendant about an appeal.

Burgest: Dual Sovereignty Precludes Suppression

In U.S. v. Burgest, No. 06-11351 (March 13, 2008), the Court rejected the defendant’s argument that statements he gave to federal investigators should be suppressed, because his right to counsel had attached in State criminal proceedings for the same drug offense, and the statements were obtained in violation of his right to counsel.
The Court recognized that the right to counsel had attached on the State charges. However, the right to counsel is offense specific, here to the State charge. The federal offenses were distinct. The Court relied on the "dual sovereignty rule," and held that the State right to counsel did not attach to the federal charges.

Stratton: Kimbrough remand

In U.S. v. Stratton, No. 06-10080 (March 13, 2008), the Court remanded a case for resentencing on Kimbrough grounds. The Court noted that the defendant had preserved the Kimbrough issue by challenging the crack/powder disparity in his appeal. Further, the district court at sentencing specifically rejected Stratton’s argument that it had the authority to consider the crack/powder disparity as a basis for a sentence reduction.

Lawhorn: Habeas relief granted on ineffectiveness grounds

In Lawhorn v. Allen, No. 04-11711 (March 11, 2008), the Court (Barkett, Wilson, Cox), affirmed a district court’s grant of habeas relief to an Alabama death row inmate, on ineffective assistance of counsel grounds.
The district court had ruled that Lawhorn was entitled to habeas relief on the ground that a confession that he gave was the product of an unlawfully long five-day detention without access to counsel. The Court pointed out, however, that the state courts had found that Lawhorn’s confession was voluntary, based on the fact that he was twice given his Miranda warning. This finding was entitled to deference.
The Court found that counsel was ineffective in waiving the giving of a closing argument during the penalty phase of the proceedings. Counsel had waived closing argument based on a misunderstanding of the rules – he thought his waiver would preclude the prosecution from making rebuttal closing. The prosecution was in fact permitted to make a rebuttal closing. The fact that counsel misunderstood the law precluded a finding that he made a sound "strategic" decision. In addition, Lawhorn was prejudiced by the failure to give a closing argument, because he had a good argument that he was a victim of "domination" by the person who made him commit the murder.

Gordon: Counsel not ineffective in failure to insist on allocution

In Gordon v. U.S., No. 05-16703 (March 7, 2008), the Court held that the defendant did not establish ineffective assistance of counsel. Gordon claimed that his counsel was ineffective for failing to object to the district court’s failure to address Gordon personally at sentencing. The Court held that even though such a failure can constitute "plain error" on direct appeal, it would not presume prejudice to the defendant in a § 2255 context. Here, the defendant did not establish prejudice.
The Court also rejected Gordon’s request for an evidentiary hearing into his ineffective assistance of counsel claim. The Court noted that it could conceive of reasonable motivations for counsel’s failure to insist on the Gordon’s right to speak up at sentencing, to wit, Gordon’s remarks "might lead the court to consider [him] even less honest than it already considered him."

Michel: 2255 motion unsigned but timely

In Michel v. U.S., No. 06-13982 (March 11, 2008), the Court held that even though an inmate initially filed an unsigned § 2255 motion, and only later filed a signed motion – after the running of the statute of limitations – the timeliness of the initial unsigned prevented his motion from being dismissed on untimeliness grounds.
The Court noted that the Rules Governing § 2255 proceedings were specifically amended to provide that a clerk should file, instead of reject, an unsigned § 2255 motion. This amendment was not in effect at the time Michel filed his motions, but it was in effect at the time the district court dismissed his motion – which was the relevant time period. The Court also noted that the Rules Governing § 2255 proceedings trumped the Federal Rules of Civil Procedure, when these two differ, and the district court therefore erred in relying on Fed. R. Civ. P. 11 in dismissing Michel’s petition.

Aviles: Withdrawal determines which Guideline manual to apply in "constant" conspiracies

In U.S. v. Aviles, No. 05-14446 (March 4, 2008), the Court, on a government appeal, reversed the district court for possibly using the wrong Guidelines manual at sentencing.
A sentencing court should apply the Guidelines manual in effect at the time of sentencing, unless use of this manual would violate the Ex Post Facto Clause (because the punishment increased after the defendant committed the offense), in which case it should use the manual in effect at the time the crime was committed. This rule can raise issues in conspiracy cases, where the crime continues over time, somewhat indefinitely. Was the defendant still involved in the conspiracy at the time of the later manual? Or did he withdraw? Can the reasonably foreseeable acts of his co-conspirators extend the conspiracy, even if he withdrew, since these acts are part of the defendant’s "relevant conduct"? Are the acts of a co-conspirator reasonably foreseeable when the conspiracy itself is sporadic?
The Court held that only when a conspiracy is "sporadic" can the cessation of one defendant’s participation cut-off the time for applying a new Guidelines manual. When (as here) a conspiracy is constant and consistent, then only withdrawal from the conspiracy will avoid application of a new Guidelines manual (under ex post facto principles). Here, the district court failed to address the withdrawal question. The Court therefore remanded the case for consideration of when the defendants withdrew from the conspiracy.

Deverso: Mistake of Age not a 2252 defense

In U.S. v. Deverso, No. 06-16048 (March 5, 2008), the Court affirmed convictions for using a minor to engage in sexually explicit conduct outside the United States for the purpose of producing a visual depiction of such conduct within the United States.
The Court found that the birth certificate of a victim in the Philippines was adequately authenticated, as a foreign public document under FRE 902(3). Here, a government agent testified that he obtained the certificate from the Philippine National Census and Statistics Office and that he had the copy authenticated and certified at the United States Embassy in Manila. The document itself was accompanied by certificates from Embassy official verifying the document’s authenticity.
The Court rejected the defendant’s argument that he was entitled to a "mistake of age" jury instruction. The Court noted that the statute contained no element requiring the defendant to know the age of the victim, and added that the Constitution did not require such an element to be included in the statute.

Alexander: Fla. 3.800(c) motion does not toll AEDPA limitations

In Alexander v. Sec. Dep’t of Corrections, No. 06-12501 (March 3, 2008), vacating its prior opinion, the Court held that a motion under Florida Rule of Criminal Procedure 3.800(c) does not toll the AEDPA limitations period. Accordingly, the Court dismissed the Florida inmate’s § 2254 petition as untimely.
The Court noted that, unlike Fla. R. Crim. P. 3.850 motions, or even 3.800(a) motions, which challenge the legality of a judgment, a 3.800(c) motion merely invoked the leniency of the court and set forth no challenge of legal error. Consequently, this was not the type of State post-conviction application which tolled the AEDPA limitations period.