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.