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.

Beckles: Undisputed PSI sawed-off shotgun establishes crime of violence

In U.S. v. Beckles, No. 07-15062 (April 17, 2009), the Court affirmed a conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g).
The Court rejected Beckles’ argument that his confession was obtained in violation of Miranda. The Court noted that the district court chose to credit the account of the FBI agent, rather than that of Beckles, regarding the voluntariness of Beckles’ waiver of his Miranda rights, and made "detailed credibility determinations" in support of its finding.
The Court also rejected Beckles’ challenge to the sufficiency of the evidence: a shotgun was found under a mattress, concealed in a location Beckles knew, in an apartment at which he resided, and the shotgun did not belong to anyone else.
The Court rejected the argument that, for purposes of determining whether Beckles’ firearm possession offense was a "crime of violence," the district court was not permitted to look outside the statute of conviction to see whether the firearm in question was a sawed-off shotgun, and therefore so qualified the firearm possession offense under career offender guidelines. The Court noted that if ambiguities in a judgment make the crime of violence determination impossible from the fact of the judgment, the district court is authorized to find additional facts, based on charging documents, written plea agreements, transcripts of plea colloquies, and any explicit factual finding made by the sentencing court. Here, the PSI’s stated that the firearm Beckles possessed was a sawed-off shotgun, and this statement was undisputed. The district court did not err in relying on this undisputed fact. Further, even if error occurred, it would not have affected the defendant’s substantial rights because the defendant failed to proffer evidence that the firearm was anything else than a qualifying sawed-off shotgun.

Davis: AEDPA bars "actual innocence" claim of death row inmate

In In Re Davis, No. 08-16009 (11th Cir. 2009) (2-1, Barkett, J. dissenting), the Court held that Davis failed to meet the statutory requirements of AEDPA for a second or successive habeas petition, and affirmed the district court’s dismissal of his petition that challenged his death sentence for a 1989 murder.
In his first federal habeas petition, Davis asserted "actual innocence" as a gateway to present otherwise defaulted constitutional challenges to his Georgia state conviction. After this first petition was denied, Davis brought a second petition, which asserted "actual innocence" as a stand-alone basis for relief, relying on witness recantations and evidence pointing to another culprit.
The Court noted that, under AEDPA, the factual predicate for a second or successive petition "could not have been discovered previously." Here, Davis was aware of the factual predicate – except for one new affidavit, which the Court found insufficient to negate the evidence supporting the jury’s verdict of guilt. The Court noted that AEDPA does not provide that actual innocence claims, standing alone, can support a second habeas petition: the statute requires a showing of a constitutional violation as well. Further, even if the statute allowed such claims, here Davis’ evidence did not suffice to establish, as the statute required, that "no reasonable fact-finder would have found the applicant guilty." The Court noted that "recantations are viewed with extreme suspicion by the courts."

Kimbrough: Strategic decision not ineffective assistance

In Kimbrough v. Secretary, DOC, No. 08-11421 (April 13, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death in 1994.
The Court rejected the argument that trial counsel was ineffective for failing to present mental health mitigating evidence at the sentencing phase. The Court noted trial counsel’s strategic decision not to present such evidence because it would have opened the door to admission to the admission of more damaging information.

Webb: No 3582 crack reduction where no change in original sentencing range

In U.S. v. Webb, No. 08-13405 (April 13, 2009) (Birch, Marcus, Anderson), the Court held that a crack cocaine offender was not eligible for a 2-level sentence reduction pursuant to Guideline Amendment 706 and 18 U.S.C. § 3582(c)(2). The Court also held that defendants are entitled to representation by counsel in § 3582(c)(2) proceedings only at the court’s discretion, and not as a matter of right.
Webb was originally sentenced pre-Booker, and given a career offender guideline level. This sentence was subsequently twice reduced based on the government’s filing of Rule 35(b) substantial assistance motions. Webb filed a § 3582(c)(2) motion to further reduce his sentence based on the 2-level crack cocaine Guideline Amendment. The district court denied this motion, reasoning that if Webb’s sentence were reduced two-levels from the original level 42 to level 40, under the career offender Guideline, his sentencing range would be unchanged at 360 months to life.
The Court affirmed. The Court noted that § 3582(c)(2) only provides for reductions when a Guideline amendment has reduced the "sentencing range." Here the sentencing range did not change. Further, Booker is inapplicable to § 3582(c)(2) motions, because it is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission. The district court therefore did not err in refusing to use Booker as a basis for a sentence reduction.
The Court joined all other circuits to have considered the issue to rule that a defendant is not constitutionally or statutorily entitled to counsel in a § 3582(c)(2) sentence reduction proceeding. The proceeding "is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines." The Court noted that a defendant has no right to be present at a § 3582(c)(2) proceeding. Further, a § 3582(c)(2) proceeding does not qualify as an "ancillary" matter under 18 U.S.C. § 3006A(c). Consequently, the district court did not abuse its discretion in not appointing counsel for Webb.

Jimenez: No Confrontation Clause plain error in brother's statement

In U.S. v. Jimenez, No. 08-14192 (April 7, 2009), the Court affirmed marijuana trafficking convictions.
The trial court admitted the testimony of a detective, that, before resuming the questioning of Jimenez inside the marijuana grow house where Jimenez was arrested, he went over to the defendant’s brother in the grow house, and the brother said that Jimenez was living with him and helping him with the marijuana plants. On appeal, Jimenez claimed that the admission of this out-of-court statement violated his Confrontation Clause rights. The Court rejected this argument, noting that in the trial court Jimenez had only objected on hearsay, not Confrontation Clause, grounds. Thus, the issue was reviewed for "plain error."
In addition, the statement was admissible as non-hearsay, because it was admitted not for its truth, but to show why the detective then resumed his questioning of Jimenez. The prejudicial impact of the admission statement that Jimenez was helping to grow marijuana was "minimal" in light of the "abundance of physical evidence," and in light of Jimenez’ unambiguous confession that he had participated in the marijuana grow operation.

Irey: Sex Offender 100-month downward Variance Reasonable

In U.S. v. Irey, No. 08-10997 (March 30, 2009), the Court rejected a government appeal of a 240-month sentence imposed on a defendant convicted of using minors to engage in sexually explicit conduct outside the United States for the purpose of producing visual depictions of such conduct and transporting the images to the United States.
The sentencing judge described the conduct as "horrific." The Guideline sentence was 360 months. The statutory maximum was also 360 months; the minimum was 180 months. The district court correctly computed the guideline sentence, and directly discussed the § 3553(a) factors on the record.
Affirming the sentence, the court noted that a 17-1/2 year sentence was not "a trifle." Further, the defendant was 50; thus the consequences of the sentence were "severe." A life term of "rigorous" supervised release was imposed. The sentence was "years beyond" the statutory minimum. The Court stated: "If we were responsible for sentencing Defendant in the first instance, we might have imposed a different sentence: we clearly believe that sentences other than the one actually imposed might also be appropriate. But we must respect the district court as the sentencer, and we accept that the sentence imposed by the district court is within the outside borders of reasonable sentences for this case. . . . The sentence must be affirmed."

Seher: Money Laundering mens rea implicit in indictment

In U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.
The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses. The Court noted that the indictment cited specific subsections of the money laundering statutes. These subsections, in turn, contained mens rea elements. Thus, it was reasonable to infer that the grand jury found that the defendants had the intents to violate the laws.
The Court also rejected a duplicitous indictment challenge. The defendants argued that 18 U.S.C. § 1956(a)(3) contains three different offenses. Consequently, when certain counts of the indictment referenced different subsections of the same statute, they charged two different offenses in the same count. Although the defendants waived this challenge by failing to raise it pre-trial, the government itself waived the waiver on appeal, and the Court therefore considered the argument. The Court concluded that § 1956(a)(3) did not create separate offenses, but listed alternative mental states for a single offense.
Turning to the forfeiture order, the Court rejected the argument that the assets of the jewelry stores, and their bank accounts, should not have been forfeited, because they were not "involved" in the money laundering offenses. The Court found that one of the businesses was a "facade of legitimacy" for the money laundering enterprise. The other jewelry business, however, was unconnected to the unlawful laundering.
Finally, the Court that the record below was insufficient to determine whether the forfeiture of the jewelry business was an excessive fine in violation of the Eighth Amendment. The Court therefore remanded the entire forfeiture order for reconsideration of this issue.

Williams: Life Sentence Affirmed

In U.S. v. Williams, No. 08-10185 (March 31, 2009), the Court affirmed the district court’s re-imposition of a life sentence.
In a prior appeal, the Court had vacated the life sentence because the district court failed to give a reason for imposing a life sentence. Upon remand, the district court provided reasons.
The Court noted that its limited mandate precluded the district court from re-examining the life sentence based on new considerations. The Court recognized that one exception to the mandate rule involved intervening changes in the law. Here, one prior conviction that qualified Williams as a "career offender" was a Florida state conviction for battery of a law enforcement. The Florida Supreme Court recently held that this offense was not a "forcible felony." Further, the Court’s precedent which held that federal, not state, law governs for career offender purposes is now up for review in the United States Supreme Court. Yet neither of these recent developments constituted an intervening change in law.

Bornscheuer: Extortion includes fear of economic loss

In U.S. v. Bornscheuer, No. 06-14607 (March 31, 2009), the Court affirmed Hobbs Act convictions arising out of extortion.
The Court rejected the argument that the "fear" that underlies an extortion conviction must relate only to fear of physical violence, not, as the jury was instructed to fear "of economic loss as well as fear of physical violence." The Court said both types of fears were contemplated by its precedent in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986).
The Court also rejected Confrontation Clause challenge to the admission of out-of-court statements, pointing out that the statement in question fell within the hearsay exception for a statement of a co-conspirator made in furtherance of a conspiracy.