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.