Lopez: "Help" Instruction ok in Alien Smuggling case

In U.S. v. Lopez, No. 08-13605 (Dec. 22, 2009) (2-1) (Barkett, J., dissenting in part), the Court affirmed convictions for encouraging or inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I ) and § 1324(a)(1)(A)(iv).

During deliberations, the jury asked what “encourage” meant. Over defense objection, the district court instructed that encourage means, inter alia, “to help.” Affirming this instruction, the Court noted that dictionary definitions of “encourage” included “help.” The Court rejected the argument that this interpretation would render other portions of § 1324 superfluous, because they criminalized bringing an alien into the United States, an offense which would be redundant if helping an alien enter the United States was already a crime. The Court noted that the different subsections of the statute contained different elements, with one referencing bringing an alien “at a place other than a designated port of entry,” and another refers only to the mere act of bringing an alien to the United States.

The Court rejected the argument that the supplemental jury instruction violated Fed. R. Crim. P. 30 by contradicting an earlier jury instruction. The Court noted the discretion of district courts to expand upon initial jury instructions when a jury question arises.

Finally, the Court rejected the argument that the alien smuggling statute requires a showing that the defendant knew that an alien was inadmissible at the time he boarded the boat. The Court found no such requirement in the statute.

Randolph: Juror Death Views Justified Dismissal

In Randolph v. McNeil, No. 08-12854 (Dec. 23, 2009), the Court affirmed the denial of habeas relief to a Florida death row inmate, seeing no reversible error in the District Court’s 160-page order. The Court rejected Randolph’s ineffective of assistance of counsel claim, agreeing that there was no reasonable probability that, but for his lawyer’s lack of investigation into his history would have changed the outcome. The Court also rejected the argument that a juror who answered questions inconsistently about her views on the death penalty was improperly struck from the jury, finding no clear and convincing evidence to reverse the State court finding that the juror was not credible when she said she could impose the death penalty.

Banjoko: Stow away offense does not require intent to enter U.S.

In U.S. v. Banjoko, No. 09-11402 (Dec. 23, 2009), the Court held that 18 U.S.C. §2199, which criminalizes stowing away on a vessel that enters the United States, does not require proof of the defendant’s intent to enter the United States. The statute requires only proof of intent to “obtain transportation” from a vessel without consent.

The Court also rejected Banjoko’s argument that the offense does not apply to extraterritorial conduct, relying on the plain language of the statute.

Langston: 666 convictions reversed, and affirmed.

In U.S. v. Langston, No. 08-16356 (Dec. 22, 2009), the Court reversed some convictions but affirmed others for a former Executive Director of the Alabama Fire College convicted of embezzlement.

The Court found that, for some counts, Langston was not an agent of the State of Alabama, but instead an agent of the Alabama Fire College. The Court noted that Langston served at the pleasure of the Fire College Commission, not the State of Alabama. However, the Court upheld other convictions under 18 U.S.C. § 666, finding that Langston was an agent of the State in his capacity in the Alabama Poison Center.

The Court also rejected Langston’s argument that the district court should have given an “advice of counsel” defense instruction to the jury. The Court noted the absence of evidence that Langston actually relied on any legal opinion.

The Court affirmed Langston’s 125-month sentence. The Court noted that the sentence was 43-months below the Guideline range. The Court declined to “reweigh” the factors addressed by the district court. The Court also rejected a comparison to the sentence of another offender who cooperated with the government’s investigation, noting that “there is no unwarranted disparity when a cooperating defendant pleads guilty and receives a lesser sentence than a defendant who proceeds to trial.”

White: Right to Venue Waived

In U.S. v. White, No. 08-10702 (Dec. 21, 2009), the Court held that the defendant waived any constitutional objection to the district court’s sua sponte decision to change the venue of the case from the Southern District of Alabama to the Middle District of Alabama, when he waited until after he was convicted to object to venue. .

The Court noted that an objection to a change of venue, like most rights, can be waived unless timely asserted. Here, the defendant moved pre-trial for a change of division (not of district), and his motion demonstrated his awareness of his right to a venue where the offense allegedly took place. Thus, when the district court announced before trial that it was changing the venue of the case and the defendant failed to object, he waived his right to venue. His silence was construed as an implied waived.

English: ACA supervised release revocation may exceed State maximum

In U.S. v. English, No. 09-12788 (Dec. 16, 2009), the Court held that a defendant who was convicted under the Assimilative Crimes Act (ACA), and who has served the state statutory maximum term of imprisonment, may be sentenced to further incarceration upon revocation of supervised release.

The defendant was convicted under ACA of DUI at a Naval Air Station in Florida. The Florida maximum punishment for this offense was five years’ incarceration. His sentence was five years, followed by three years of supervised release. After serving the sentence of incarceration, while on supervised release, English violated his conditions of supervised release, and after his revocation hearing the court imposed a 24-month term of incarceration. English appealed, claiming that the 24-month additional sentence exceeded the statutory five-year maximum for his Florida DUI offense.

The Court noted that sentencing courts are authorized to impose a term of supervised release under ACA, even if this term is in addition to the state statutory maximum. If a defendant violates supervised release, the sentencing court has the same authority that it has in non-ACA supervised release violations: to order additional incarceration in order to provide the deterrent mechanism intended by Congress. If a conflict exists between State and Federal law, the state law is not assimilated. Federal sentencing policy regarding supervised release overrides conflicting state provisions regarding maximum terms of incarceration.

Griffey: Federal govt need not give SORNA notice

In U.S. v. Griffey, No. 09-11696 (Dec. 15, 2009), the Court affirmed a defendant’s conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA).

Citing U.S. v. Brown, the Court rejected claims that SORNA did not apply to Griffey because Alabama had not implemented this statute at the time he failed to register as a sex offender. The Court rejected the argument that the federal government must notify a person convicted of a sex offense of his legal duty to register under SORNA. The Court pointed out that the defendant admitted that he knew of his duty to register, and this knowledge sufficed to establish a knowing violation of the statute.

Cummings: No Ineffective Assistance Where Defendant Wanted No Mitigation Presented

In Cummings v. Sec. Dep’t of Corrections, No. 09-12416 (Dec. 4, 2009), the Court reversed a grant of federal habeas corpus to a Florida inmate sentenced to death for the 1991 murder of his girlfriend. The Court concluded that counsel was not ineffective for investigate and present more mitigation evidence at the sentencing phase.

The Court pointed out that the defendant “clearly, consistently, and adamantly insisted tht he wanted no mitigation evidence presented in the penalty phase.” Counsel did not “blindly follow” the client’s wishes, but moved for a competency evaluation. Counsel investigated the defendant’s prison records. In addition, to maintain the trust that existed between the client and him, counsel ultimately decided to abide by the client’s instructions regarding the mitigating evidence, specifically his wish that he did not want his family testifying. In addition, counsel was a veteran criminal defense, giving rise to a presumption of reasonable performance. Counsel could not be faulted for not putting on evidence of Cumming’s drug use, his family’s criminal history, or his antisocial personality disorder, not only because it was inconsistent with his chosen strategy, but also because it would have had a negative effect on the jury.

Finally, even if counsel’s performance were deemed deficient, Cummings failed to show that he was prejudiced because it is clear that he would not have authorized counsel to present mitigating evidence. In addition, even had the jury heard the mitigating evidence, there is no reasonable probability that the outcome would have been different, in light of the aggravating circumstances, which included Cummings’ three prior convictions for violent felonies, and the heinous circumstances of his murder.

Hunter: Mental Retardation Tolls AEDPA deadline

In Hunter v. Ferrell, No. 08-16597 (Nov. 18, 2009), the Court held that despite the fact that an Alabama inmate missed the deadline for filing a federal habeas petition by eight years, because of his mental retardation he was entitled to an evidentiary hearing on whether the filing deadline should be equitably tolled on account of his retardation.

The Court noted that Hunter alleged that his mental retardation prevented him from timely filing his habeas petition. Moreover, the record supported this claim. First, his prior pro se filings were filed with the assistance of prison law clerks. Second, a mental health expert’s report “strongly suggests that Hunter’s well-documented, irreversible mental retardation is severe enough that Hunter, by himself, is not able to understand and comply with AEDPA’s filing requirements and deadlines.”

Hammond: Death penalty affirmed for Georgia inmate

In Hammond v. Hall, No. 08-11109 (Nov. 4, 2009) (Carnes, Marcus, Pryor), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1988 murder.

The Court rejected Hammond’s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults. The Court noted that this was not a record of prior convictions, nor “evidence.”

The Court also rejected Hammond’s request to have a shotgun tested in order to show that it was not the murder weapon. The Court noted that this request comes “years too late.”

The Court noted that an audiotape of witness testimony was suppressed, and that this audiotape might have shown that the witnesses disagreed about who had removed jewelry from the murder victim. But this discrepancy merely involved a “detail” in the evidence.

The Court also rejected the claim that the State failed to disclose the full scope of immunity of Hammond’s girlfriend, who was an accomplice in the charged murder and other Hammond crimes. The Court recognized that the failure to disclose a witness’ immunity requires a new trial if the witness is the State’s lead witness. But here there was other evidence against Hammond, and the jury knew at least of the witness immunity for the murder charge at issue.

Looking at the suppressed evidence as a whole, the Court concluded that “against the mountain of inculpatory evidence,” its confidence in the verdict was not undermined.

The Court rejected an ineffective assistance of counsel claim based on trial counsel’s failure to seek a mistrial during the sentencing phase of trial, when the prosecutor improperly warned the jury that if it did not sentence Hammond to death, he would someday be a free man. Under Georgia law, this improper argument triggers a right to a mistrial, but trial counsel instead accepted the trial court’s curative instruction. The Court deferred to the ruling of the Georgia courts that any ineffectiveness did not result in prejudice to Hammond, because of the aggravating circumstances and the trial court’s curative instruction. The Court found inadequate support in Supreme Court caselaw for defendant’s argument that the failure to obtain a mistrial is, of itself, prejudice. Further, the Georgia mistrial statute did not embody a constitutional right to not have the jury be aware of the possibility of parole if a death sentence is not imposed. Finally, the Court noted that the Georgia statute, by concealing truthful information about the defendant’s parole eligibility, does not make the sentencing process more fair or reliable.

Brown: SORNA provides adequate registration requirement notice

In U.S. v. Brown, No. 08-17244 (Nov. 5, 2009), the Court affirmed a conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), and the imposition of a sentence that included a life term of supervised release.

On plain error review, the Court rejected a challenge to the life term of supervised release was invalid. At his guilty plea colloquy, the court incorrectly told the defendant that he faced a maximum three-year term of supervised release. The PSI correctly stated the life term. The Court noted the error at the guilty plea colloquy was plain, but there was no prejudice because Brown did not establish that he would not have pled guilty had he known that the maximum supervised release term was life instead of three years.

The Court rejected the argument that Brown could not have violated SORNA by failing to register in Alabama when he moved to Alabama, as SORNA required, because Alabama had not yet implemented the SORNA requirements. The Court explained that Alabama’s requirements were different from Brown’s, and that Alabama already had a sex offender registry in place.

The Court also rejected Brown’s Due Process challenge to the registration requirement. The Court found that, by pleading guilty, he had waived the factual argument that he was prevented from registering. The Court also found that Brown received adequate notice of the registration requirement. The Court noted that Brown had actual knowledge of his duty to register in Alabama. Further, there were circumstances that would have prompted Brown to inquire further, including his own past compliance with the registration requirement in another state (North Carolina).

Harris: Fleeing Police at High Speed is "Crime of Violence"

In U.S. v. Harris, No. 08-15909 (Nov. 3, 2009), the Court affirmed reliance on a prior Florida state conviction for eluding a police officer at a high rate of speed as a “crime of violence” for Guidelines criminal history sentence enhancement purposes.

The Court noted that the elements of the offense were fleeing at high speed or a wanton disregard for safety, which are akin to crimes committed while aware that “violence might ensue.” The Court stated that a person who fled police at a high speed is the kind of person who might point a gun and pull the trigger. The crime displays a “callousness toward risk.” The conduct is also “aggressive” because highways are populated with people. The Court cited cases on other Circuits which reached the same conclusion.

Sanchez: Errors in 3559 sentence enhancements

In U.S. v. Sanchez, No. 06-15143 (Oct. 30, 2009), the Court affirmed convictions of several defendants relating to the attempted burglary of a marijuana grow-house.

The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records. The Court also rejected challenges to the use of summaries of this evidence during trial, pointing out that the trial court had instructed the jury that the summaries were not evidence and that the evidence was the call records.

Turning to sentencing, on plain error review, the Court vacated sentences based on the federal “three strikes” law, 18 U.S.C. § 3559(c). As the government conceded, one defendant’s prior drug-trafficking conviction did not qualify as a prior drug trafficking offense for purposes of § 3559 because the drug quantity was unspecified, and § 3559 requires prior convictions of quantities above a specified amount in the cross-referenced federal drug statute.

The Court remanded to the district court another defendant’s argument that his prior “escape” conviction did not qualify as a crime of violence for § 3559 purposes. The Court noted that the district court had erroneously believed that the defendant could not raise this challenge to his sentence.

Finally, the Court found no procedural or substantive error in the district court’s upward departure and upward variance based on his criminal history. The Court noted that the district court had stated that it had considered the § 3553 factors.

Tate: 946-month sentence affirmed for bank robber

In U.S. v. Tate, No. 09-10288 (Oct. 30, 2009), the Court affirmed a defendant’s convictions for multiple bank robberies and firearm-possessions.

The Court rejected Tate’s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home. Here the circumstances established probable cause.

The Court also rejected Tate’s argument that the district court should have invited defense counsel to state whether he had any Batson challenges before the jury is sworn. The Court declined to create a new rule requiring the Court to ask for Batson objections.

Turning to sentencing, and recognizing a Circuit conflict on the issue, the Court held that 18 U.S.C. § 924(c) requires that sentence for using a firearm during the commission of a crime of violence be imposed consecutively. The Court also rejected Tate’s challenge to the reasonableness of his 946-month sentence, pointing out that it was within the Guideline range, and noting Tate’s escalating criminal history since his teenage years.

Maples: No Excuse for Procedural Default

In Maples v. Allen, No. 07-15187 (Oct. 26, 2009), the Court affirmed the denial of habeas relief to an Alabama death-row inmate.
After his murder conviction and death sentence were affirmed on direct appeal in the Alabama courts, Maples, represented by counsel, filed for collateral relief in Alabama state court. The court denied relief, and Maples’ lawyers neglected to file a timely appeal. The Alabama courts found that the deadline for filing an appeal barred Maples from pursuing collateral relief. Maples brought a federal habeas action, alleging the same claims asserted in the Alabama collateral relief suit. The Court found that these claims were procedurally defaulted.
The Court found that Maples could not excuse the procedural default, because he was not entitled to representation in his collateral proceeding, and therefore could not establish ineffective assistance.
The Court rejected Maples’ argument that the Alabama trial court should sua sponte have given the jury an instruction regarding manslaughter and voluntary intoxication. The Court found no such requirement in the caselaw, and noted that the evidence would not have supported a voluntary intoxication defense.

Velez: Criminal Defense attorney transactions exempt

In U.S. v. Velez, No. 09-10199 (Oct. 26, 2009), the Court affirmed the district court’s dismissal of a money-laundering count in a prosecution against a criminal defense lawyer, in which the government charged that the lawyer approved of the transfer of funds for a drug dealer’s defense knowing that they were derived from criminal activity.
The Court relied on 18 U.S.C. § 1957(f), which exempts from money-laundering prosecution "any transaction necessary to preserve a person’s representation as guaranteed by the sixth amendment." The Court rejected the government’s argument that the plain meaning of this statute had been modified by a subsequent Supreme Court decision. The Court pointed out that this decision involved a different, civil forfeiture statute. Consequently, the decision had no bearing on the exemption statute.

Lee: "Walkaway" offense not "violent felony" under ACCA

In U.S. v. Lee, No. 08-14724 (Oct. 26, 2009), the Court, citing Chambers v. U.S., 129 S.Ct. 687 (U.S. 2009), held that a prior "walkaway" escape conviction is not a "violent felony" and therefore vacated the defendant’s 15-year mandatory minimum sentence under the Armed Career Criminal Act. The Court affirmed the felon in possession conviction.
The Court rejected Lee’s Fourth Amendment challenge to the seizure of a gun from the glove compartment of a car in which he was a passenger. The Court found that, as a passenger, Lee lacked standing to challenge the search of the vehicle.
The Court also rejected Lee’s argument that the judge should not have used his own ruler and car keys to demonstrate for the jury the concepts of actual and constructive possession.
Turning to sentencing, the Court applied the approach of the Supreme Court in Begay and Chambers, and concluded that Lee’s prior conviction, which was based on his leaving a halfway house without permission, was not a crime of violence. The Court cited similar decisions in other Circuits which reached the same conclusion in light of Begay and Chambers. The Court noted that Lee’s walkaway offense did not involve "aggression," and was not the type of conduct "that one hears about and remarks, ‘that’s the kind of thing an armed career criminal would do.’"

Quintina: Ethnicity not basis for police encounter

In U.S. v. Quintana, No. 08-12967 (Oct. 22, 2009), the Court rejected a defendant’s claim that his right to Equal Protection was violated when the police initiated a consensual encounter with him – an encounter which ultimately led to a conviction for illegal re-entry in violation of 8 U.S.C. § 1326(a) – based on their belief that he appeared to be of Middle Eastern ethnicity. The Court found that it did not need to reach the question whether a consensual encounter can give rise to an Equal Protection violation, because the record showed that the encounter in Quintana’s case was not based on Quintana’s apparent race or ethnicity, but on the police’s interest in questioning him about why he showed up a nightclub with a video camera and did not want to go in, and took flight upon seeing the police.

Chavez: Simultaneous Bench and Jury Trials Ok

In U.S. v. Chavez, No. 08-12638 (Oct. 16, 2009), the Court affirmed drug trafficking convictions and sentences.
Several defendants were indicted in the case. One pled not guilty. Four pled guilty but reserved the right to have a bench trial requiring proof beyond a reasonable doubt as to the drug quantities. The five went to trial together. The trial court did not disclose to the jury that some defendants had pled guilty; the verdict form ultimately only sought a verdict as to one defendant.
The Court rejected this defendant’s argument that his motion for a severance should have been granted. While acknowledging the novelty of simultaneous jury and bench trials, and declining to endorse the technique, the Court found no prejudice.
The Court rejected the argument that a mistrial should have been granted when a government witness, in response to a question on cross-examination, answered: "The only way to know [the answer] is through the Defendant." The Court found that curative instructions cured the error, which was all but invited by defense counsel’s question.
The Court also rejected a challenge to the sufficiency of the evidence, noting the abundant circumstantial evidence, and other evidence.
Turning to sentencing, the Court rejected a challenge to the reasonableness of Chavez’ life sentence. The Court noted that the sentence was consistent with the Guidelines.
The Court rejected another defendant’s sentencing challenge. The Court noted that the sentence was based on cash found at the defendant’s residence, which the sentencing court converted to methamphetamine quantities. The Court found the inference that the cash came from drug trafficking to be reasonable.

Martinez: Orchestrator not automatically organizer

In U.S. v. Martinez, No. 08-13846 (Oct. 5, 2009) (Marcus, Hill & Voorhees, b.d.), the Court reversed an "organizer or leader" sentence enhancement, under USSG § 3B1.1(a), that had been imposed on a defendant convicted of marijuana trafficking.
At his plea colloquy, Martinez admitted that he "orchestrated" weekly shipments of mail parcels containing marijuana from Texas to various locations in the Middle District of Florida. Despite this admission, the Court concluded that the government failed to establish that Martinez was an "organizing or leader," as defined by the seven explanatory factors listed in Comment four of USSG § 3B1.1.
The Court found that the term "orchestrate" is not synonymous with control. Orchestrate may mean no more than coordinating a transaction, as opposed to creating or managing it.
Further, the government presented no evidence that Martinez had decision-making authority. The "bare" record also did not indicate Martinez’ relative responsibility in relation to others. Nor was there evidence that Martinez recruited any co-conspirators, claimed a larger share of the proceeds of the crime, or whether he acted at the behest of a supervisor. At the sentencing hearing, Martinez alleged that he did not know who the leader of the group was. While Martinez admitted that he had co-conspirators, the evidence did not indicate that these persons were his subordinates.
The Court stated that at re-sentencing, the government could present evidence in support of the claimed leadership enhancement.

Faris: Proposed Guideline Amendment does not affect binding Circuit precedent

In U.S. v. Faris, No. 08-16336 (Sept. 23, 2009), the Court upheld the conviction and sentence of a defendant convicted of possession of child pornography, and enticing a minor to engage in sexual activity.
The Court rejected Faris’ argument that his prosecution violated the Commerce Clause. The Court pointed out that Faris used the internet, and the internet is an instrumentality of interstate commerce.
The Court also rejected Faris’ argument that the Necessary and Proper Clause did not confer authority to prosecute him. The Court noted that Congress has "substantial leeway" in how to regulate purely intrastate activity that it deems can, in the aggregate, frustrate the broader regulation of interstate economic activity.
Turning to sentencing, the Court rejected Faris’ argument that his sentence should not have been enhanced for having "influenced" a "minor," because the "minor" in his case was a law enforcement officer. The Court recognized that the applicable Guideline is scheduled to be amended on November 1, 2009, to provide that the enhancement does not apply in a case where the only minor is a law enforcement officer. However, the precedent of the Eleventh Circuit, which is contrary to this amendment, remains binding, and the Guideline amendment has no force until adopted.

Rhode: No ineffective investigation of mitigation

In Rhode v. Hall, No. 08-16960 (Sept. 17, 2009), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders.
The Court rejected all of Rhode’s ineffective assistance of counsel claims. The Court found that counsel adequately investigated mitigation evidence, having, inter alia, traveled out of state to interview ten possible mitigation witnesses.
The Court also rejected a challenge to the presentation of mitigation evidence, pointing out that defense counsel called nine witnesses during the penalty phase. Counsel could not be faulted for not calling witnesses that counsel viewed as cumulative, or for presenting evidence that the jury might have viewed as aggravating, not mitigating.
The Court distinguished cases where counsel had failed to investigate voluminous mitigating evidence, or failed to examine the files that the prosecutor had warned would be used at trial.

Segarra: 924(c) means consecutive sentences in all cases

In U.S. v. Segarra, No. 08-17181 (Sept. 15, 2009), the Court, joining the majority of Circuits to have addressed this question of statutory interpretation, held that 18 U.S.C. § 924(c) mandates a consecutive sentence for firearm possession offense in furtherance of a drug trafficking crime, even when the statutory mandatory minimum for the drug trafficking crime exceeds the mandatory minimum for the firearms offense. The Court rejected the Second Circuit’s contrary reading of the statute.
Given the Court’s interpretation of § 924(c), Segarra’s waiver of his right of appeal did not give him any basis to appeal his sentence. The Court therefore dismissed his appeal.

Jordan: Rejecting Government Cross-Appeal of Probation Sentence

In U.S. v. Jordan, No. 06-12563 (Sept. 11, 2009), the Court affirmed convictions and sentences arising out of an Alabama Sheriff’s unlawful use of the National Crime Information Center database to obtain the criminal records of those who voted in a Sheriff’s reelection race (which the Sheriff lost).
The Court rejected the argument that the indictment did not give the defendant adequate notice of the charges. The Court rejected the argument that the indictment failed to allege a crime, pointing out that it alleged that the NCIC was used for non-law enforcement purposes, in violation of 18 U.S.C. § 641.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Jordan, as a lawyer acting for Sheriff Woodward, obtained NCIC printouts, and used some of the information they disclosed.
The Court found no error in the district court’s refusal to give a "good faith" defense jury instruction, pointing that the trial court’s instruction regarding the meaning of "knowingly" and "willfully" adequately addressed the good faith defense concept. The Court also found no error in refusing the give the defendant’s "confused" instruction regarding the attorney-client privilege.
The Court also rejected the government’s cross-appeal of the sentences of six month probation. The government argued that the sentencing court erred because it "did not deem the offense to be serious." The Court found that the sentencing court’s findings of fact were not clearly erroneous. Moreover, the sentencing court gave "appropriate consideration" to the § 3553(a) factors.

Garcia-Bercovich: Shrink wrapped boxes part of same package

In U.S. v. Garcia-Bercovich, No. 08-12061 (Sept. 10, 2009), the Court affirmed convictions for marijuana trafficking.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Garcia-Bercovich traveled across the United States to pick up packages for an individual he barely knew. He had previously been convicted of importation of marijuana. One could infer that Garcia-Bercovich deliberately avoided learning the contents of the items he picked up so as to have this defense in the event of prosecution. Lastly, the defendant’s attempt to flee was evidence of guilt.
The Court also found no Fourth Amendment violation in the search of the boxes in which marijuana was found. Marijuana was found by a private search in a single box which came shrink wrapped on a single pallet with other boxes. The other boxes were then opened by police without a warrant. The Court rejected the argument that the search of the other boxes required a warrant, finding that all the boxes were part of the same "package" because they were shrink wrapped together on the same pallet.

Johnson: State Probation does not Suspend Federal Supervised Release

In U.S. v. Johnson, No. 09-10351 (Sept. 2, 2009), the Court held that time spent serving a State sentence on probation, while under a federal sentence of supervised release, does toll the running of the period of supervised release. The fact that the State sentence of imprisonment was suspended so that Johnson could serve it on probation did not affect the tolling analysis. Hence, Johnson’s alleged violations of his conditions of federal supervised release, which occurred, when one excludes the time spent on probation on a State sentence, within the federal supervised release three-year term, could be the basis for revocation of supervised release. The Court therefore affirmed the district court’s revocation of Johnson’s supervised release, based on violations that occurred within the three-year period.

McIntosh: Second Indictment must be dismissed after guilty plea to first indictment

In U.S. v. McIntosh, No. 08-15549 (Aug. 27, 2009), the Court held that Double Jeopardy barred the government from indicting a defendant for a second time, after the defendant pled guilty to a first indictment charging the same offenses, but on different (erroneous) dates.
A first indictment charged drug and firearm offenses occurring in February 2007. The defendant pled guilty. However, prior to sentencing, the government informed the court that the date of the indictment was wrong: the offenses occurred in November 2005. The government obtained a second indictment, and moved to dismiss the first one.
The Court noted that, for Double Jeopardy purposes, jeopardy attaches when a court accepts a guilty plea. It is a conviction. Thus, here, jeopardy attached. The Court rejected the argument that the case was "exceptional," pointing out that one purpose of Double Jeopardy is to protect against "prosecutorial negligence." The Court disagreed with the district court that the dismissal of the first indictment, without prejudice, "effectively withdrew" the plea. The dismissal did not vacate the plea, or the conviction. Moreover, the defect in the indictment was not "fatal" and therefore did not justify a second indictment.
The Court also rejected the government’s argument that McIntosh had implicitly consented to the second indictment, pointing out that defense counsel had stated that he was not acquiescing in a second indictment.
The Court remanded the case with instructions to vacate the second indictment.

Gomez

In U.S. v. Gomez, No. 09-11031 (Aug. 28, 2009), the Court held that it was not harmless error for the trial judge to fail to instruct the jury – contrary to the Supreme Court’s recent holding in Flores-Figueroa v. U.S., 129 S.Ct. 1886 (2009) – that the government had to show that the defendant knew that the means of identification that was the subject of the identity theft charged under 18 U.S.C. §1028A(a)(1) "belonged to another person."
The Court noted defense argument that Gomez used a false identification document in order to get a job, to fulfill "the American dream," and not to "live off of somebody else . . . or steal." The Court noted that the evidence supported this defense; the jury could have found that the government failed to prove that Gomez knew that the identification documents belonged to another person. The error therefore was not harmless. The Court vacated the conviction and remanded for further proceedings.

Felts: No Plain Error in not instructing jury in the conjunctive

In U.S. v. Felts, No. 08-11450 (Aug. 21, 2009), the Court held that there was no plain error in a money laundering jury instruction.
The money laundering statute at issue made it unlawful to transport funds either to promote specified unlawful activity, or to conceal the nature of the proceeds of the specified unlawful activity. The jury instruction in Felts charged the violation of the statute in the conjunctive, that is, the jury was instructed in a single paragraph that either intent to promote or intent to conceal would be valid bases to convict. Felts argued that the jury should have been instructed that it had to agree as to which mental state existed.
Rejecting the argument, the Court noted that the distinction between the two mental states was "minimal." Thus, there was little, if any, risk of unfairness in not treating each mental state – intent to conceal vs. intent to promote – as a separate violation.

Maxwell: Convictions for MIA Contract Fraud Affirmed

In U.S. v. Maxwell, No. 07-11301 (Aug. 19, 2009), the Court affirmed convictions and sentences arising out of a fraudulent scheme to obtain construction contracts for work at Miami International Airport set aside for socially and economically disadvantaged companies.
The Court rejected the argument that the district court violated the Sixth Amendment when it limited defense cross-examination of a government witness. The Court found that the examination exposed facts that were more than sufficient to allow the defense to argue that the witnesses were biased. Further, the topic on which the defense sought to cross-examine a witness was "of no palpable impeachment value." In addition, certain questions "were beyond the scope" of direct examination.
The Court rejected challenges to the sufficiency of the evidence, finding "ample" evidence that Maxwell made material misrepresentations. The Court found that the jury could conclude that the supposed subcontractor performed no commercially useful function.
The Court found no error in refusing to give the jury instructions Maxwell proposed. These instructions would have addressed the ambiguity of the regulations at issue. The Court stated that the "good faith defense" given by the district court were sufficient to allow Maxwell to argue in closing argument that he did not have the requisite criminal intent.
Turning to sentencing, the Court rejected Maxwell’s challenge to the loss calculation. The Court found that the district court actually understated the amount of the loss, because it relied on the 6% profit on the government contracts, not the entire value of the diverted contracts of over $7 million. However, because the government did not cross-appeal this issue, the Court did not remand for resentencing.

Bonilla: Double Jeopardy Violation in Identity Theft Charges

In U.S. v. Bonilla, No. 08-112127 (Aug. 18, 2009), the Court – on plain error review after a guilty plea – reversed identify theft convictions, because the indictment was multiplicitous and violative of Double Jeopardy.
The defendant was convicted under both 18 U.S.C. § 1208(a)(7) and 1028(a)(1), which address access device fraud. The Court found that both of the statutes contain "identical" elements. "This is a clear example of one act violating two distinct statutory provisions and therefore violating the protection against double jeopardy."
Turning to the factual record at the defendant’s plea colloquy, the Court found that (without the need to depend on facts outside the record, which the guilty plea would have waived), the same factual information supported both charged offenses.
Bonilla’s time in prison, however, will remain the same. His sentence on the duplicative counts ran concurrent to sentence on the remaining counts.
The Court found no duplicativeness violative of Double Jeopardy in Bonilla’s conviction under § 1028A, because this statute authorized cumulative punishment, by providing for an additional two-year penalty in addition to any term of imprisonment for the underlying offense.
The Court rejected Bonilla’s challenge to the district court’s decision to impose consecutive sentences, noting that the district court has discretion to do so under the Guidelines, and here noted the seriousness of Bonilla’s crimes.

Kaley: Defendants entitled to hearing on seizure of assets pretrial

In U.S. v. Kaley, No. 07-13010 (Aug. 18, 2009), the Court held that the district court should have held an evidentiary hearing to determine whether to lift an injunction preventing the defendants from encumbering their home in order to raise money to pay for defense counsel. Citing U.S. v. Bissell, 866 F.2d 1343 (11th Cir. 1989), the Court held that the district court should have held a hearing to weigh the suffering of the defendants from the denial of counsel of choice against the government’s interest in recovering the assets seized.

Ponce: Georgia Commercial Vehicle Inspection Is Valid

In U.S. v. Ponce-Aldona, No. 08-13144 (Aug. 12, 2009), the Court rejected a Fourth Amendment challenge to a "safety checkpoint" stop of the defendant’s truck.
Georgia police set up a safety checkpoint at an exit to I-85 northbound, to pull over commercial vehicles for inspection. Officers spotted the defendant driving a truck who appeared to notice the officers and then bypassed the exit. The officers stopped and searched the truck and found cocaine. Ponce challenged the search under the Fourth Amendment.
The Court held that the search fell within the administrative search exception to the warrant requirement of the Fourth Amendment. The Court explained that an administrative inspection of a closely regulated business is a well-established exception to the warrant requirement for a search. The Court found that the Georgia inspection program adequately advised that searches would be made on a regular basis and were not merely discretionary. The regulations provided that Department of Motor Vehicle enforcement officers were authorized to stop and inspect commercial motor vehicles. Further, the discretion of the inspecting officers was adequately limited because only DMVS officers could inspect, and inspections are limited to public highways, searches are limited to the cargo area and documents of commercial vehicles. Further, time and place restrictions are not feasible because trucks could easily avoid fixed checkpoints. The Court noted that for this inspection, all commercial vehicles that passed by the checkpoint without stopping were more likely than not going to be pulled over and inspected.

Windom: Counsel not ineffective in death penalty phase

In Windom v. Sec. Dep’t of Corrections, No. 07-15876 (Aug. 10, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three murders in 1992.
The Court found that even assuming Windom’s counsel’s limited investigation into Wiondom’s background and mental health constituted deficient performance, Windom was not prejudiced thereby. The evidence of Windom’s background and mental health would not have affected the outcome, because of overwhelming evidence of premeditation, and the relative weakness of the conclusions of mental health experts.
The Court also rejected an ineffective challenge to counsel’s opening and closing arguments. Counsel argued for the existence of the statutory mitigating circumstances of extreme mental or emotional disturbance. Counsel’s candor about the crimes did not prejudice Windom, in light of the strength of the State’s case for death.

Bobb: No Double Jeopardy Violation on Receiving and Posssing Child Porn

In U.S. v. Bobb, No. 07-13252 (Aug. 6, 2009), the Court rejected a Double Jeopardy challenge to convictions for receiving and possessing child pornography.
The Court agreed with Bobb that in the abstract it could violate Double Jeopardy to prosecute a defendant for both "receiving" and "possessing" child pornography, because this would be multiple punishment for the same offense. The Court noted that it is impossible to receive a thing without also possessing it. The Court found no intent of Congress to punish the same conduct twice, under separate statutes.
However, Ball was charged with receiving child pornography on a separate date from the date on which he was charged with possessing additional child pornography. Thus, the indictment charged two separate and distinct offenses. Thus, the Double Jeopardy challenge ultimately fell short.

Philmore: Right to Counsel did not yet attach

In Philmore v. McNeil, No. 07-13637 (July 23, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1997 murder.
The Court rejected Philmore’s ineffective assistance of counsel claim. Philmore argued that his defense counsel in a bank robbery case was ineffective in allowingd him to speak to law enforcement. In his discussions, Philmore divulged information that incupalted him in a murder with which he had not (yet) been charged. The Court held that defense counsel in the bank robbery could not have been constitutionally deficient in the murder case, because Philmore had not been charged with murder, and no Sixth Amendment right had yet attached.
The Court also found no ineffectiveness in counsel’s failure to prevail on a Batson claim when a member of the jury panel was struck by the prosecution. The Court pointed out that counsel challenged the strike.
The Court found no ineffectiveness in failing to call an expert on Philmore’s mental impairment, as his testimony would have contradicted other defense experts.’
Finally, the Court noted that Philmore’s challenge to the state court’s failure to taking account of the mitigating evidence of mental disturbance was procedurally defaulted.

Carroll: Atkins does not compel post-conviction hearing

In Carroll v. Sec. DOC, No. 08-14317 (July 17, 2009), the Court found no constitutional violation in a Florida state court’s denial of an evidentiary hearing, in post-conviction hearings, to a death row inmate who claimed his mental retardation exempted him from the death penalty.
The Court found no support for Carroll’s argument that the Supreme Court’s decision in Atkins v. Virginia, prohibiting the execution of the mentally retarded, compelled Florida state courts to grant an evidentiary hearing in post-conviction proceedings, particularly where three prior proceedings had considered his claim of mental retardation.
The Court also rejected Carroll’s argument that Atkins must be extended to the mentally ill, not just the mentally retarded. This would be a new rule of constitutional law, which are not created on habeas review.

Dasher: A piece of foolish advice

In Dasher v. Witt, No. 08-10363 (11th Cir. July 13, 2009), the Court granted habeas relief based on ineffective assistance of counsel
Dasher decided to reject a plea offer to be sentenced to 13 months, and opted to plead guilty to cocaine trafficking charges "straight up," that is, without any agreement, based on his attorney’s advice that he doubted the sentence would exceed 13 months, and might be less. Once the judge learned of Dasher’s criminal history, he imposed a 10-year sentence.
The Court held that counsel was not ineffective in failing to investigate Dasher’s criminal history. The record supported an implicit finding that counsel asked Dasher about his prior criminal record. Moreover, failure to undertake an independent investigation was not constitutionally ineffective when counsel relied on information apparently in the hands of the prosecutor.
However, it was "a piece of foolishness" to advise Dasher that if he pled "straight up" he would receive little more than 12 months. Counsel was aware of other felonies to which Dasher was pleading guilty to, around the same time. Nor was the bad advice cured by the judge’s advice to Dasher that he had "total discretion" to sentence him up to 30 years, because Dasher would not have been worried this possibility, given counsel’s advice. "Whether or not he had a lengthy prior criminal record, Dasher was clearly risking a sentence of substantially more than thirteen months, and there was certainly no reason to believe he would do better.
Because Dasher had already served all but five months of his sentence, the court modified the State sentence to time-served. "Our discretion to formulate such a remedy, without disturbing the judgment of conviction, derives from 28 U.S.C. § 2243, which authorizes federal habeas courts to ‘dispose of the matter as law and justice requires.’"

Land: Prosecutor Speculation in Closing Argument Error, but Not Reversible Error

In Land v. Allen, No. 08-15254 (July 10, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for murder.
The Court held that despite evidence that a statement was taken from Land by Alabama police while he was in a semi-fetal position, with his hands covering his face, the totality of the circumstances did not indicate that his statement was involuntary.
The Court recognized that the trial court erred when it instructed the jury that "I determine the voluntariness of the statement [given by Land to police]." However, in view of the remainder of the instructions, this instruction by itself did so infect the entire trial so as to violate due process.
The Court also recognized that the prosecutor, in a case where the facts were all circumstantial, made improper closing argument when he speculated about the words that Land exchanged with the victim before murdering her. While the Court did not "condone the prosecutor’s behavior," it found that this misconduct did not so infect the trial as to make the resulting conviction invalid.
Finally, the Court did not find ineffective assistance of counsel in the failure to put on mitigating evidence about Land’s upbringing, noting the strategic decision behind it.

Goings: Ok for Georgia police to chase into Florida unauthorized

In U.S. v. Goings, No. 08-15705 (July 7, 2009), the Court, citing the Supreme Court’s recent decision in Virginia v. Moore, 128 S.Ct. 1598 (2008) (no Fourth Amendment violation when police officer makes an arrest prohibited by state law but based on probable cause), held that no Fourth Amendment violation occurred when Georgia police, in a hot pursuit car chase, crossed into Florida without authorization and apprehended a defendant. The Court noted that it was undisputed that the Georgia police had probable cause to arrest Goings. It was therefore irrelevant whether the chase into Florida was authorized by Florida law.

Valencia-Trujillo: No Extradition Treaty, No Standing

In U.S. v. Valencia-Trujillo, No. 07-10524 (July 7, 2009), the Court affirmed the conviction and sentence of a defendant extradited from Colombia for cocaine trafficking.
The Court rejected the defendant’s "rule of specialty" argument, which claimed that he had been prosecuted in the United States for crimes outside the scope of Colombia’s extradition. The Court found that the defendant lacked "standing" to make this argument, because standing depended on the text of an extradition treaty, and the defendant was not extradited under an extradition treaty, but merely pursuant to an "extradition agreement."
The Court also rejected the argument that the jury convicted Valencia-Trujillo of predicate acts for a CCE conspiracy that were not charged in the indictment. The original indictment included "including, but not limited to" language with respect to the predicate acts, language which was broad enough to cover the predicate acts which were later added at trial.
The Court also rejected the defendant’s Franks challenge to the validity of the affidavit used by the FBI to support his extradition from Colombia. The Court found that the Fourth Amendment does not apply to improper seizures in Colombia.
Finally, the Court found no Batson violation in the government’s striking of the only Colombian-American member of the venire, noting that the person might fear retaliation against his family in the event of a guilty verdict, even though the family lived in Bogota and the defendant was from Cali.

Moran: No Notice Required Pre-Sentencing for Supervised Release Conditions

In U.S. v. Moran, No. 08-16987 (July 1, 2009), the Court found no error in the sentencing court’s imposition, without prior notice in advance of sentencing, of special conditions of supervised release to address a defendant’s proclivity to sexual misconduct.
The Court reasoned that supervised release, by its nature "comes with conditions." Based on his criminal history, which involved allegations of sexual misconduct, Moran knew that this would come up at this sentencing – and he did not request a continuance.
The Court also upheld the conditions imposed. The requirement to participate in a mental health program for sex offenders was justified by Moran’s documented history of sex-related offenses. Such a condition could be imposed even though it was unrelated to Moran’s firearm possession conviction. The condition was justified by Moran’s prior failure to register as a sex offender. Further it was proper to require Moran to register as a sex offender, given the new requirements of the Sex Offender Registration and Notification Act. The Court also upheld the restriction on Moran’s access to the internet.

Thomas: Law of the case doctrine does not preclude certain 2255 issues

In Thomas v. U.S., No. 06-15651 (June 30, 2009), the Court held that the "law of the case" doctrine did not preclude a federal inmate, in a § 2255 proceeding, from raising a claim of (1) ineffective assistance of counsel, and (2) infirmity of a prior state convictions which called into question his "career offender" status.
The Court noted that the "law of the case" doctrine only precludes relitigation of issues the were decided explicitly, or by necessary implication, in a prior appeal. The doctrine does not preclude consideration of matters that could have been, but were not, resolved in earlier proceedings.
Thomas had lost a prior appeal of his conviction and sentence, after his counsel filed an Anders brief and he filed a pro se brief. However, the ineffective assistance issue was not raised on direct appeal. Similarly, the invalid state court conviction was not presented on appeal, neither in the Anders brief nor in the pro se brief. Consequently, these two issues were not precluded from § 2255 consideration.

Tagg: Pipe Bombs Not Protected by Second Amendment

In U.S. v. Tagg, No 08-16860 (June 30, 2009), the Court affirmed the conviction of a defendant charged with aiding and abetting in the possession of a pipe-bomb.
The Court rejected Tagg’s challenge to the sufficiency of the evidence, pointing out that his conduct in helping persons purchase gunpowder, watching them build pipe bombs in his garage, and telling them to go light the bombs somewhere else, sufficed.
The Court also rejected Tagg’s argument that the Second Amendment protected his activity. Unlike handguns "pipe bombs are not typically possessed by law-abiding citizens for lawful purposes."

Gari: I-123 Immigration forms if Confrontation Clause error, harmless error

In U.S. v. Gari, No. 08-10014 (June 30, 2009), the Court affirmed certain Cuban alien-smuggling convictions, reversed others, and remanded for resentencing.
The Court found sufficient evidence to convict the defendants of several counts of alien smuggling. However, as to one alien smuggling count, the evidence established that she had prior authorization to enter the United States through a designated port of entry. Accordingly, the convictions of the defendants for smuggling this alien (including the defendant who did not raise the issue on appeal) were set aside, as the statute required the government to prove that she entered without prior authorization.
The defendants challenged the government’s reliance on the aliens’ I-213 Forms as violative of the Confrontation Clause, because the defendants did not have an opportunity to cross- examine the aliens whose responses were recorded on these forms. Declining to reach the issue on the merits, the Court held that any error in admitting the forms was harmless, in view of the other evidence.
The Court rejected a defendant’s Rule 404(b) challenge to the admission of prior bad act, because the alien smuggling episode in question was "not very remote in time from the date of the charged conduct."
The Court disagreed with the government that one defendant had waived his motion to sever, pointing out that the district court had "implicitly denied" it, but agreed with the government that the denial of severance was not an abuse of discretion, pointing out that the court gave the jury a limiting instruction as to how the evidence should be considered on a defendant-specific basis.
In light of its vacatur of two convictions, the Court remanded the entire case for resentencing.

Doorball: State waiver dooms federal habeas petition

In Doorbal v. Dept. of Corrections, No. 08-15869 (June 29, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1994 and 1995 murders.
The Court found that the Florida Supreme Court had earlier ruled that Doorbal’s claim of ineffective assistance of counsel was waived because he failed to present the issue on appeal in the Florida state courts. Doorbal could not overcome this procedural default in federal courts, because it was an independent and adequate state ground for denying federal review.

Wilk: Self defense not available when defendant had reason to know law enforcement was entering his home

In U.S. v. Wilk, No. 07-14176 (June 29, 2009), the Court affirmed the conviction and sentence of a defendant charged with killing a state law enforcement officer assisting in a federal investigation.
Law enforcement officers, suspecting Wilk of possession of impeding a federal investigation, forcibly entered Wilk’s home. Wilk shot and killed one officer. His defense at trial was that he feared being attacked because he previously been a victim of anti-gay vandalism, suffered from neurological disorders, and he acted in self-defense.
The Court rejected Wilk’s challenge to the exclusion of evidence that the victim was on steroids at the time of the shooting. The Court agreed with the district court that this fact was ultimately irrelevant. The Court reached the same conclusion with respect to the exclusion of evidence that the police failed to follow proper police procedure during entry into Wilk’s residence, noting that the self-defense claim rested on Wilk’s state of mind, not the officer’s procedures.
The Court also rejected the argument that Wilk’s medical records should have been excluded, pointing out that Wilk relied on his mental status in his defense, and that the confidentiality of his records was limited if release was "required by law" – as it was here, when the grand jury subpoenaed the records.
The Court also found no error in the self-defense jury instruction. The instruction stated that, to overcome a self-defense claim, the government need oly show that the defendant "had reason to know" that the victims were law enforcement officers engaged in the performance of their duties. Wilk argued that this weakened the self-defense claim in relation to Circuit precedent. The Court rejected this argument, noting that only in "extraordinary" cases would the government be required to prove that the defendant "knew of" the victim’s status.

Barner: Prosecutor misled court on reasons for not giving 5K1.1 reduction

In U.S. v. Barner, No. 08-10080 (June 29, 2009), the Court affirmed the conviction of a defendant charged with possession of ecstasy, but reversed the sentence.
The Court rejected Barner’s claim that statements were obtained from him in violation of Miranda. The Court found that even though one statement was obtained while Barner was in jail, Barner himself initiated the discussion, and was not compelled to do so.
The Court also rejected Barner’s challenge to the use of statements he made during a "drive-around" Atlanta identifying locations of his past home invasions, finding this evidence was not of significance to the ultimate ecstasy distribution conviction.
Turning to sentencing, the Court rejected the government’s argument that any error in the sentencing guidelines calculation was harmless. The Court found that the district court did not clearly state that it would have imposed the same sentence under § 3553(a). Further, the district court imposed a sentence within the guidelines, and an error in applying the guidelines cannot be said to be harmless, even under § 3553(a).
The Court found two errors in the calculation of the sentence. First, the district court was misled by the prosecutor regarding the reasons for its withdrawal of a promised § 5K1.1 substantial assistance motion for sentence reduction. These statements may have caused the district court to sentence based on clearly erroneous facts.
Second, the court incorrectly denied an acceptance of responsibility sentence reduction, even though Barner proceeded to trial. Barner had cooperated with law enforcement, and had offered to plead guilty to the only count of a ten-count indictment for which he was subsequently convicted.
However, the Court affirmed sentence enhancements, including assigning criminal history points based on a prior Georgia conviction. The Court pointed out that this conviction was considered a prior conviction under Georgia law.

Flores: Sur-13 gang convictions and sentences affirmed

In U.S. v. Flores, No. 08-10775 (June 29, 2009), the Court affirmed the convictions and sentences of defendants convicted of RICO and murder crimes as members of the Sur-13 gang.
The Court found no fault in the district court’s excusing a potential juror for cause when she said she suffered from attention deficit disorder ("ADD"), noting that untreated ADD could interfere with a juror’s ability to pay attention in a lengthy trial.
The Court also rejected an argument that the venire was prejudiced by a potential juror’s comment that, as a corrections officer, he had dealt with some of the defendants on trial. The "short and nondescript" statements did not create a continuing influence on the trial.
The Court rejected the argument that a statement by a gang member describing the details of a murder was not made in "furtherance" of a conspiracy, and was therefore not admissible under F.R.E. 801(d)(2)(E). The defendant argued that the statement was made in contravention of the gang leader’s instruction to gang members not to talk about the murder. The Court found that the statement did "foster cohesiveness within the gang," and therefore fell within this hearsay exception.
The Court recognized that, in light of Apprendi, the district court might have erred in instructing the jury on that, because drug distribution inherently affects interstate commerce, an effect on interstate commerce could be found even if instrastate drug distribution was found,. However, any error in the instruction on the interstate nexus was harmless in light of the evidence of interstate commerce.
Turning to sentencing, the Court found that, just as a conspiracy is a continuing offense for purposes of determining whether a person can be prosecuted as an adult, and not as juvenile, it is also a continuing offense for sentencing purposes. The Court affirmed the sentences, including life sentences, as reasonable.

Gupta: Gupta Sentence Vacated Again

In U.S. v. Gupta, No. 08-12248 (June 23, 2009), on a government appeal, the Court vacated the sentence of three years probation and no restitution imposed on a Medicare fraud defendant.
At sentencing, confronted with a government loss estimate of $3.4 million and a defendant estimate of zero, the district court split the difference and determined loss to be $1.5 million. The Court found this "arbitrary decision"
to be a failure to resolve the factual issues underlying the loss issue.
The Court also faulted the district court for granting an acceptance of responsibility sentence reduction, noting that the defendant had gone to trial and continued to protest his innocence after conviction. The reduction was a "gratuitous" decision.
The district court further abused its discretion in failing to order restitution. Restitution was mandatory under the Mandatory Victims Restitution Act.
Finally, the Court agreed with the government that the case should be reassigned to another judge for resentencing. Noting the district court’s "obvious" errors, the fact that the case had been remanded for resentencing several times before, and its failure to follow prior mandates, and the district court’s own suggestion that it is not capable of addressing the issues, reassignment was necessary "to preserve the appearance of justice."

Elso: Case is No Longer Pending Once Eleventh Circuit Mandate Issues

In U.S. v. Elso, No. 06-14954 (June 19, 2009), the Court held that a district court lacked authority to consider the defendant’s motion under Fed. R. Crim. P. 12(b)(3)(B), challenging the subject matter jurisdiction over one of his counts of conviction.
Fed. R. Crim. P. allows a challenge to a jurisdictional defect in the indictment to be filed "while the case is pending." However, Elso filed his Rule 12 challenge after he lost his appeal of his conviction in the Eleventh Circuit, and after the mandate of that Court had issued. He filed it after the United States Supreme Court denied his petition for a writ of certiorari, but before the Supreme Court denied his petition for rehearing of this denial. The Court held that the case was no longer pending at this time.
First, once the mandate of the Eleventh Circuit issued, the case was no longer pending, because Elso had neither moved to stay the mandate, or seek its recall. Second, under the Supreme Court Rules, the petition for rehearing did not suspend the effect of the denial of the writ of certiorari.

Jefferson: Failure to investigate brain damage not ineffective assistance

In Jefferson v. Hall, No. 07-12502 (June 12, 2009), the Court (2-1, Carnes, J. dissenting) reversed the grant of habeas relief to a Georgia inmate sentenced to death for a 1985 murder.
The Court found that counsel had not given ineffective assistance at the penalty phase of the trial. Jefferson claimed that counsel failed to present evidence of his claimed organic brain damage.
The Court noted that "strategic decisions" of counsel are reviewed deferentially: no relief can be granted on ineffectiveness grounds unless it is shown that "no reasonable lawyer" would have so acted in the circumstances. The Court noted that with hindsight, it could always be said that trial counsel "could have done something different." But ineffectiveness unless redresses what was "constitutionally compelled."
The Court found no ineffectiveness in counsel’s decision to pursue an innocence strategy, noting that their psychologist expert testified that he told counsel it would be a waste of time to investigate brain damage.
[Carnes, J., dissenting, pointed out that the residual doubt defense presented at the penalty phase was not inconsistent with the evidence of brain damage which defense counsel failed to investigate.]

Docampo: 270 month sentence on 18 year old is reasonable

In U.S. v. Docampo, No. 08-10698 (June 15, 2009), the Court (2-1, Barkett, J., dissenting in part) affirmed as "reasonable" a sentence of 210 months, plus a 60 month consecutive sentence, for cocaine trafficking and gun conviction convictions.
The Court agreed with Docampo that the district court erred in admitting the hearsay statement of an accomplice’s girlfriend about a threatening phone call that Docampo made to the girlfriend. But the Court found the error harmless, in light of other evidence.
The Court rejected a sentence manipulation claim based on Docampo’s age at the time of the government sting. The Court noted that Docampo was an adult when the sting occurred.
The Court also rejected the challenge to the failure to give Docampo a minor role sentence adjustment, finding that the district court was justified in using his possession of a firearm as basis for denying minor role.
The Court affirmed the sentence as reasonable, noting the district court’s comment about the "upsurge" of crime by young persons. The Court noted that cooperating co-defendants had received sentences of 180 months and 60 months. Two juveniles were prosecuted as adults in state court and received sentences of probation. But disparity is permitted for defendant who cooperate with the government, and disparity between state and federal sentences is not a goal of 3553(a).
[Barkett, J, dissenting, found the sentence "procedurally unreasonable," because the district court did not adequately explain its decision, other than stating that the sentence was needed for "general deterrence." The district court did not adequately grapple with the drastic disparity among the accomplices’ sentences. The extreme disparity also made the sentence substantively unreasonable, because excessive.]

Sarras: 1,200-month sentence for step-daughter child porn affirmed

In U.S. v. Sarras, No. 08-11757 (June 16, 2009), the Court affirmed convictions and sentences for persuading a step-daughter to engage in sexually explicit conduct for photos.
The Court rejected the argument that a doctor the defense called as a witness should have been permitted to opine that, based on his expertise in examining penises, the penis shown on photographs was not that of the defendant. The Court found that the district court had not abused its discretion in concluding that comparing veins in erect penises was not a "reliable identification methodology."
The Court found no abuse of discretion in the preclusion of defense questioning of the victim, under Fed. R. Evid. 412, regarding subsequent sexual activity. "Victims of sexual abuse can be traumatized whether or not they have had other sexual relations."
The Court dismissed as "rank speculation" the claim that the Sheriff’s office had a financial interest in forfeiture, and therefore should have been cross-examined on this topic.
The Court rejected the argument that the social worker who testified for the government should not have been permitted to give lay opinion testimony, under Fed. R Evid. 701, that it is not unusual for a child sex victim to fail remember exact dates and times. The Court agreed that this was expert, not lay testimony, but found any error harmless, because "the key issue involved identifying the abuser, not pinpointing precisely when the abuse occurred."
The Court also rejected the challenge to the failure to conduct a Franks hearing regarding the search affivadit for Sarras’ home. The Court noted that the allegations in the affidavit regarding sexual activity and photographs sufficed to support probable cause for a search.
Finally, the Court affirmed the sentence of 1,200 months. The Court affirmed a two-level obstruction of justice enhancement based on Sarras’ manipulation of photos of his penis to avoid conviction. The sentence was within the Guidelines range, and was reasonable for an offense "among the most egregious and despicable."

Demarest: Yacht dealer money laundering conviction upheld

In U.S. v. Demarest, No. 08-12296 (June 10, 2009), the Court affirmed money-laundering convictions and sentences for a yacht dealer who agreed to sell a yacht for cash to undercover agents posing as narcotics traffickers.
The Court found that the jury reasonably rejected Demarest’s defense that he was intoxicated when he agreed to the deal. Demarest mental efforts "suggest that he was not so drunk that he did not know what was happening."
The Court also found that the jury reasonably rejected the entrapment defense. The evidence overwhelmingly established Demarest’s predisposition. "It is hard to imagine a more enthusiastic money launderer."
The Court rejected Demarest’s argument, based on the Supreme Court’s recent decision U.S. v. Santos, that he did not launder "proceeds" of illegal activity, because the moneys at issue were the "receipts" from the sale of a yacht, not profits. The Court held that because Santos was decided by a plurality of the Court, its narrow holding regarding receipts only applied to gambling operations, not drug trafficking. The Court also found Cuellar v. U.S. inapplicable, because that case involved a design to "conceal" the proceeds of unlawful activity, and Demarest was charged with the intent to "promote" unlawful activity.
Turning to sentencing, the Court rejected Demarest’s double-counting challenge to his sentence, noting that the Sentencing Guidelines provide for a separate enhancement for certain types of money-laundering violations. The Court also found that the six-level enhancement for knowing the funds were the proceeds of the distribution of controlled substances was supported by the record.

Kapordelis: 420 month sentence for child porn

In U.S. v. Kapordelis, No. 07-14499 (June 1, 2009), the Court affirmed the convictions and 420-month sentence of an anesthesiologist charged with producing, receiving and possessing child pornography.
The Court rejected Kapordelis' argument that some of his photos were taken in Greece and the statute should not apply extraterritorially. The Court noted that Kapordelis transported his pictures from Greece into the United States and this nexus sufficed. The Court also rejected Kapordelis’ challenge to venue, pointing out that his crime was a "continuing offense," and the possession continued in Georgia.
The Court rejected the argument that evidence of Kapordelis sexual activities with young boys in the Czech Republic should not have been admitted under Fed. R. Evid. 404(b) because this activity was legal in that country. The Court noted that 404(b) contemplates the admission of other "wrongs," and noted that this evidence was sufficiently probative of Kapordelis’ knowledge of the photographs to be admitted.
Turning to the sentence, the Court rejected the argument that the district court erred in relying on the 2002 version of the Guidelines, instead of the 2003 version. The Court noted that since the district court granted an upward variance to 420-months, any error was harmless. For the same reason, the Court rejected Kapordelis’ double-counting challenge to certain guideline enhancements.
Finally, the Court upheld the sentence as reasonable, noting the large number of images Kapordelis possessed. The Court recognized that the district court failed to articulate why a 262-327 months guideline sentence would be disproportionately low, but found that the sentence was reasonable in relation to the other § 3553(a) factors.

Hoffman-Vaile: Dermatologist Obstruction Conviction Affirmed

In U.S. v. Hoffman-Vaile, No. 07-12629 (May 27, 2009), the Court affirmed the convictions of a dermatologist charged with Medicare fraud and obstruction of justice.
Applying plain error review, the Court rejected a challenge to the admission of reports prepared by a private administrator that processes and reviews claims for Medicare. Their admission did not affect the defendant’s substantial rights in view of the other substantial evidence. The Court also found no plain error in the admission of testimony of repeated instructions to the defendant on how to properly bill Medicare, because this testimony related to the defendant’s intent.
The Court also rejected the challenge to the conviction under 18 U.S.C. § 1519, which criminalizes destruction of documents in response to a federal investigation. Hoffman-Vaile claimed that the statute does not apply to responses to a grand jury investigation. The Court rejected this interpretation of the statute.
The Court rejected the argument that the calculation of loss, for sentencing purposes, was erroneous, because based on 100% of the fraudulent billing, when Medicare only paid Hoffman-Vaile for 80% of the billing, with the patient or private insurers paying 20%. The Court noted that patients and private insurers were also victims, and the amount was part of what Hoffman-Vaile intended to recover.
Turning to the forfeiture order, the Court rejected the argument that the amount of forfeiture should be reduced by the amount that Hoffman-Vaile paid in restitution to victims other than Medicare. The Court noted that forfeiture focuses on the defendant, not the victim.
Forfeiture is "punitive."

Spoerke: PVC pipe bombs are "destructive devices"

In U.S. v. Spoerke, No. 08-12910 (May 22, 2009), the Court held that a homemade explosive device made of polyvinyl chloride (PVC) pipe that could propel shrapnel was a "destructive device"under 26 U.S.C. §§ 5801 et seq. The Court noted that Spoerke admitted that his devices could hurt people. The government expert testimony established that the pipe bombs were designed as weapons, and were capable of propelling shards. Moreover, the jury was free to reject Spoerke’s assertion that he designed the devices for "social enjoyment" by exploding them under water.
The Court rejected Spoerke’s argument that the National Firearms Act was unconstitutional as applied to him, because pipe bombs are unlawful, and their regulation therefore cannot be justified under Congress’ taxation powers. Spoerke conceivably could have registered and paid taxes on his pipe bombs.
The Court also affirmed the denial of the motion to suppress physical evidence obtained after the vehicle Spoerke was riding in was stopped for littering. Once police spotted gloves, goggles, a face mask and a flashlight in plain view, and noted other suspicious circumstances, the police had an articulable suspicion that the occupants of the vehicle were engaged in a burglary, and reasonably prolonged the traffic stop to investigate further. In addition, the statements Spoerke gave during the traffic stop fell within the "public safety" exception to Miranda, which allows officers to question a suspect without first giving Miranda warnings when necessary to protect themselves or the general public.
The Court rejected the challenge to the admission of videos showing the jury explosions of devices similar to Spoerke’s. "The video demonstration was relevant to prove the nature of the devices." The Court rejected the challenge to the government’s reference to items seized in the vehicle as related to other crimes, pointing out that this was relevant to the claim that the pipe bombs "were designed as weapons."
Turning to the sentence, the Court rejected the argument that Spoerke should have received an acceptance of responsibility sentence reduction even though he went to trial, because he challenged only the constitutionality of the Firearms Act. The Court noted that Spoerke also contested whether his pipe bombs were destructive devices, and attempted to exclude evidence of his guilt. The Court upheld the 44 months sentence as substantively reasonable.

Lamarca: No Habeas Relief for Murder of Daughter's Husband

In Lamarca v. Sec. Dep’t of Corrections, No. 08-16775 (May 19, 2009), the Court denied habeas relief to a Florida inmate sentence to death for the 1995 murder of his son-in-law.
The Court rejected most of Lamarca’s claims because they were not presented to the Florida state courts, and therefore were not exhausted. The Court also rejected Lamarca’s argument that he was unfairly precluded at his trial from showing that his daughter wanted a divorce and therefore had a motive to kill her husband. The Court noted that the Florida Supreme Court had agreed with Lamarca on this issue, but found that the error was harmless in light of the strong evidence against him. The Court found that no jurists of reason would find this State determination to be an unreasonable application of federal law.

Owen: Appellate Counsel Not Ineffective

In Owen v. Dep’t of Corrections, No. 07-14727 (May 18, 2009), the Court denied habeas relief to a Florida inmate sentenced to death for murders committed in 1984.
The Court rejected the argument that Owen’s appellate counsel was ineffective because he labored under a conflict once Owen filed a bar complaint against him. Owen failed to point to specific evidence in the record that his interests were in fact compromised.
The Court also rejected the argument that the State violated Owen’s right to counsel when it questioned him about a murder without counsel present, after Owen had been charged with an unrelated burglary. The Court noted that the right to counsel had not attached in the murder case simply because it had attached in the burglary case.

Smith: No Abuse in Imposing High End of Guidelines in Amended Crack Sentence

In U.S. v. Smith, No. 08-13215 (May 19, 2009), the Court held that the district court, at a resentencing pursuant to 18 U.S.C. § 3582(c)(2) for a defendant eligible for a sentence reduction pursuant to the recent Amendment to the crack cocaine Guidelines, did not err in failing to adequately address the § 3553(a) factors when it imposed sentence at the high end of the amended guideline range. The Court stated that reversal on this ground is limited to situations "when the record contain[s] no evidence the district court had considered, or the defendant had even raised, the applicability of any of the § 3553(a) factors." Here, the defendant had raised these factors.
The Court also rejected the argument that the district court had the discretion to sentence below the amended guideline range, citing U.S. v. Melvin, 556 F.3d 1190 (11th Cir. 2009), cert.denied May 18, 2009.

Payne: Appellate counsel not ineffective

In U.S. v. Payne, No. 08-12944 (May 7, 2009), the Court rejected an inmate’s motion under 28 U.S.C. § 2255 which claimed ineffective assistance of appellate counsel.
Payne pointed out that his appellate counsel had failed to challenge on appeal the district court’s imposition of a two-level "abuse of trust" sentence enhancement based on Payne’s status as a pastor. The Court had held in U.S. v. Hall that a defendant’s status as a pastor did not suffice to support a two-level "abuse of trust" sentence enhancement. However, Hall predated Payne’s appeal. Payne’s appellate counsel raised other issues on appeal. "Therefore, it was a reasonable strategy for counsel to focus this Court’s attention on those issues that he felt were the strongest."

Bautista-Silva: Reasonable Suspicion to Stop Suburban on I-95

In U.S. v. Bautista-Silva, No. 08-13803 (May 11, 2009) (2-1) (Barkett, J., dissenting), the Court reversed the district court’s suppression of statements and physical evidence obtained as a result of a traffic stop which resulted in the arrest of five illegal aliens from Mexico.
A U.S. Border Patrol agent was monitoring southbound interstate traffic on Interstate 95 in Brevard County, Florida, parked at a rest stop. He noticed a Chevrolet Suburban with five passengers on the highway, which seemed to get alongside a pick up truck as it passed by. The Suburban had California licence plates. When the agent drove onto the highway, the Suburban picked up its speed up to 90 miles per hour. When the agent caught up, the Suburban slowed down very quickly. The agent decelerated to maintain his position beside the Suburban, and tried to get the attention of the passengers. The passengers appeared nervous and did not acknowledge the agent. The agent stopped the Suburban.
The Court held that the agent had reasonable suspicion that the vehicle contained illegal aliens. The Court noted that the Suburban’s acceleration and deceleration were consistent with an attempt to evade, and, with the other evidence, gave rise to reasonable suspicion that the vehicle contained illegal aliens.

Aldrich: Masturbating on internet is "sexual contact"

In U.S. v. Aldrich, No. 08-15556 (April 27, 2009), the Court held that the "sexual contact" sentence enhancement of USSG § 2G2.1(b)(2)(A) includes the act of masturbating on the internet. The Court explained that the guideline definition of "contact" refers to contact with "any person" – which includes the defendant.

Carter: Reasonable Suspicion Suffices to Search Probationer's Home Without Warrant

In U.S. v. Carter, No. 08-14460 (April 27, 2009), the Court held that "reasonable suspicion" sufficed to justify a warrantless search of the home of a probationer.
Carter was serving probation after arrests for battery and possession of cocaine. Carter’s probation officer became suspicious that Carter was engaging in drug trafficking after noticing changes in Carter’s lifestyle (despite a meager income), his association with a person with a criminal record, and his apparent gang affiliation. The officer searched Carter’s home and found evidence that led to Carter’s prosecution for crack cocaine trafficking and gun possession.
Citing the balancing test of U.S. v. Knights, 534 U.S. 112 (2001), the Court held that reasonable suspicion for the search sufficed under the Fourth Amendment. The Court noted Carter’s diminished privacy interest as a probationer. The Court further noted the government’s interest in monitoring a probationer, because of his propensity to commit more crimes. The Court recognized that the conditions of Carter’s probation did not authorize warrantless searches. Nevertheless, on balance, the search of Carter’s home based on reasonable suspicion was reasonable under the Fourth Amendment.
The Court found that the facts supported the probation officer’s reasonable suspicion, noting that Carter "appeared to live well beyond his means."

Schultz: Magistrate Judge can decide self-representation

In U.S. v. Schultz, No. 06-11673 (April 22, 2009), the Court affirmed fraud convictions and dismissed the defendant’s appeal in part for lack of jurisdiction.
The Court found no error in having a Magistrate Judge, as opposed to an Article III district court, decide Schultz’s Faretta motion for self-representation.
The Court noted that it lacked appellate jurisdiction to review the rulings of a Magistrate Judge, and therefore could not review Schultz’ challenge to the Magistrate Judge’s order denying self-representation. The Court noted that Schultz’ attorney orally objected at the commencement of trial in the district court to the lack of self-representation, and that the district court ruled "denied." However, the Court noted that Schultz’ oral motion did not alert the district court to the Magistrate Judge’s order. The Court rejected Schultz’s argument that the Magistrate Judge failed to inform him of the 10-day deadline for filing objections. The Court pointed out that the 10-day deadline notice requirement applies to reports and recomendations, not to pre-trial orders, and, further, was not yet in effect at the time of Schultz’ proceedings prior to September 2005.

Mitchell: unreasonable 21-day delay in seeking warrant to search hard drive

In U.S. v. Mitchell, No. 08-10791 (April 22, 2009), the Court reversed the denial of a motion to suppress, holding that the 21-day delay between the seizure of a computer hard drive and obtaining a warrant to search the hard drive constituted an unreasonable delay, in violation of the Fourth Amendment’s warrant requirement.
The government’s justification for the 21-day delay was that the agent who seized the hard drive was away from the office on a two-week training session, and saw no urgency to search the hard drive because the defendant had admitted that it contained child pornography images. Rejecting this position, the Court noted that individuals are dependent on their hard drives for a number of essential tasks in their lives, and they contain a universe of personal information. Further, the justification for the delay was not adequate, because another agent could have done the forensic search of the hard drive while the agent was away for training. The Court noted that its finding was specific to the circumstances of the case.

Covington: 404(b) admissible in murder for hire

In U.S. v. Covington, No. 08-10513 (April 22, 2009), the Court affirmed the convictions and sentence of a defendant charged with having hired a murderer to kill a girlfriend.
Covington was arrested and charged with assaulting his girlfriend. He allegedly hired a hitman to murder his girlfriend to avoid having her testify against him.
The Court found no abuse of discretion under FRE 404(b) and 403 in the admission of communications Covington had from jail with his ex-girlfriend, of a description of his prior assault, and of the gun he used in the prior assault. The Court recognized that prior domestic abuse evidence can be irrelevant and prejudicial in a narcotics prosecution. Here, however, this evidence was relevant to Covington’s motive to hire someone to kill his girlfriend. The motive was to silence the girlfriend.
The Court found a sufficient interstate nexus in Covington’s use the telephones because he called across state line to discuss the scheme. The FBI did not contrive to create an interstate nexus.
The Court further found an adequate agreement of payment for murder where Covington wired $300 that eventually reached his intended hit man. In addition, negotiations mentioned payment of six kilos of cocaine.
The Court affirmed the 40-year sentence. The Court rejected the argument that a prior conviction was constitutionally invalid and therefore should not have been counted at sentencing. The Court noted that Custis v. U.S. precluded the kind of challenge Covington raised. In addition, his guilty plea to a firearm in possession count amounted to an express admission that § 924(e) applied to him.
The Court rejected an improper "grouping" challenge. The Court noted that the two murder for hire counts should not have been grouped with the felon in possession of a firearm count, because the two offenses involved a different victim. The girlfriend was the victim of the two murder for hire offenses, while "society as a whole" is considered the victim of a felon in possession offense. Moreover, the motives were different. The murder for hire scheme intended to keep the girlfriend from testifying; Covington did not yet want her dead at the time of his pistol-waving assault. Finally, the Court found it reasonable for the sentencing court to run Covington’s sentences consecutively, and to impose the resulting 420-month sentence.

Lopez-Garcia: No Interrogation where interrogator would not have known of incriminating possibility

In U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).
The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment. The Court found no Fourth Amendment violation. The police officer had reasonable suspicion to stop Lopez-Garcia’s vehicle based on its observation that he seemed to have been engaging in a drug transaction. [In a footnote, the Court noted that the government had not demonstrated that the "particular circumstances" showed a violation of the Georgia traffic code, and thus a traffic violation alone did not justify the stop]. The Court also found that probable cause supported Lopez-Garcia’s arrest, because the consensual search of the vehicle uncovered a drug substance and paraphernalia. The Court added that even if there had been a Fourth Amendment violation, the statements Lopez-Garcia later gave were "too attenuated from his arrest to be regarded as fruit of the poisonous tree." The statements were made the day after the arrest. The arrest and the questioning were conducted by different individuals. The arrest was not motivated by the ulterior purpose to determine Lopez-Garcia’s immigration status.
The Court also rejected the argument that Miranda required suppression of the statements. The parties did not dispute that Lopez-Garcia was in "custody." However, the Court found that no "interrogation" occurred, because the law enforcement agent who questioned Lopez-Garcia would not have reasonably known that his questions would elicit a self-incriminating statement. The questioner was not aware that Lopez-Garcia had previously been deported, nor that he had entered the country illegally. Therefore, he would not have thought it "especially likely" that Lopez-Garcia would confess to having re-entered the country illegally.
The Court further rejected the argument that the "fruit of the poisonous tree" doctrine required suppression of a second Mirandized confession Lopez-Garcia gave 10 days after his first confession. These later statements were "far too attenuated" from the earlier ones to have been tainted by them. In addition, the Court rejected a Missouri v. Seibert challenge to the second confession, finding that the absence of Miranda warnings in a first interview was not purposeful, but merely reflected the fact that the interrogator did not anticipate that his questions would result in self-incriminating statements.
The Court rejected the argument that Lopez-Garcia’s immigration files should have been suppressed. The Court again found the "fruit of the poisonous tree" doctrine inapplicable. It also noted that identification information is not excludable, citing its recent decision in U.S. v. Farias-Gonzalez (identity evidence not subject to exclusionary rule).
Turning to sentencing, the Court affirmed the imposition of a 16-level sentence enhancement based on a prior conviction for a felony firearms offense under Georgia law. The Court found that the Georgia offense was the equivalent of an 18 U.S.C. § 924(c) violation. The Court noted that the nexus of the firearm to a drug trafficking offense in Lopez-Garcia’s firearm offense would have satisfied the "possession" prong of the § 924(c) offense. The Court rejected Lopez-Garcia’s U.S. v. Shepard challenge to the district court’s fact-finding on this point, noting that the district court relied on the PSI, and the PSI information regarding the prior Georgia offense’s nexus to drug trafficking was undisputed. Without deciding whether reliance on a PSI is always justified, the Court, citing U.S. v. Hedges, noted that when statements in a PSI are undisputed, a sentencing court is permitted to rely on them despite the absence of supporting evidence.

Emmanuel: Fourth Amendment does not reach Bahamas

In U.S. v. Emmanuel, No. 07-10378 (April 21, 2009), the Court affirmed drug trafficking convictions.
The Court rejected the argument that a wiretap of the defendants under Bahamian law so "shocked the conscience" as to warrant suppression of its fruits, because no neutral magistrate need approve the wiretap. The Court noted that the "shock the judicial conscience" standard is meant to protect against conduct that violates "fundamental international norms of decency." Fundamental international norms of decency do not require judicial review in all jurisdictions of applications to intercept wire communications. Therefore, the Bahamian wiretap is not excludable.
The Court also rejected the argument that the United States so involved itself with the Bahamian government in the wiretap that the Fourth Amendment applied. The Court noted that Emmanual was a nonresident alien entirely outside the United States. The Fourth Amendment therefore could not apply, regardless of United States involvement. The Court distinguished U.S.v. Behety, on the ground that it involved a resident alien and a U.S. citizen. The Fourth Amendment exclusionary rule does not apply to the interception of wire communications in the Bahamas of a Bahamian resident.
The Court rejected hearsay and Confrontation Clause challenges to the admission at trial of the Bahamian government’s approval of the wiretap, finding that admission of this evidence, even if error, did not substantially affect the trial.
The Court also found no prejudice in the district court’s admission of police officer testimony that he recognized the defendant’s voice from having heard it at the defendant’s condition of bail hearing. The comment was a brief reference during a relatively long trial.
The government offered a police officer as an expert to interpret drug codes and jargon used in taped conversations. The Court rejected Emmanuel’s Rule 702 challenge to this testimony, finding that drug codes and jargon are proper subjects of expert testimony. The Court recognized that such testimony "may unfairly provide the government with an additional summation by having the expert interpret the evidence, and may come dangerously close to invading the province of the jury. Here,"most" of the testimony "was specific and closely related to [the] interpretation of drug codes and jargon." But "some" of the testimony "went beyond interpreting code words to interpret conversations as a whole." Nevertheless, it was unlikely this affected Emmanuel’s substantial rights, because the judge emphasized that the jury will determine whether the testimony is credible. In addition, based on Emmanuel’s own incriminating statements on tape, the jury "could have easily interpreted the coded conversations as involving drugs based on other evidence in the case, including actual seizures of drugs and drug money and testimony from coconspirators." Any error, therefore, did not require reversal.

Parker: No Purposeful Discrimination in Peremptory Strikes

In Parker v. Allen, No. 05-16907 (April 20, 2009), the Court affirmed the denial of habeas relief to an Alabama inmate convicted of a 1988 murder.
The Court rejected Parker’s Batson challenge to the peremptory strikes used against black venirepersons. The Court noted that the Alabama courts had considered this claim, and found no error in a finding of an absence of "purposeful discrimination."
The Court also rejected Parker’s argument based on the prosecutor’s improper vouching for prosecution witnesses in closing arguments. The Court noted that the Alabama courts had found the improper vouching occurred, but that this vouching did not materially affect the trial. This conclusion was not unreasonable.
The Court also found that the Alabama courts were not unreasonable in rejecting Parker’s Brady claim. Parker argued that the prosecution should have disclosed the criminal history record of one of its witnesses. The Court noted that the convictions were a matter of public record that Parker could have uncovered. Further, the jury heard about some of the witnesses prior convictions.
The Court rejected Parker’s ineffective assistance of counsel claims. Counsel were not ineffective for failing to present evidence that Parker was drug or alcohol impaired when he made a statement to police, because Parker was in fact cognizant of the situation. Counsel were not ineffective in failing to present evidence regarding the murder weapon; additional evidence would have been cumulative. Counsel were not ineffective in failing to present additional evidence of the absence of probable cause for Parker’s arrest, because Parker was not prejudiced by not having this additional evidence presented.