Whitson: Non-overt act conspiracy not "crime of violence"

In U.S. v. Whitson, No. 09-10521 (Feb. 24, 2010), applying Begay v. U.S., the Court held that a prior conviction for a non-overt act conspiracy was not a “crime of violence” for purposes of Career Offender eligibility under USSG § 4B1.1

The Court noted that the South Carolina conspiracy statute under which Whitson was previously convicted does not require an overt act. Further, the “agreement” that constitutes a conspiracy is not, without more, violent or aggressive. The Court rejected the Fourth Circuit’s contrary holding that a conspiracy cannot be divorced from its violent objective, and that a conspiracy increases the likelihood of violence. The Court held that Begay requires looking at the conspiracy “alone” to determine whether the conspiracy was “violent.” “Seeing no violence or aggression in the act of agreement,” the Court concluded that it did not qualify as a “crime of violence.”

Phillips: Rule 35(a) deadline applies to 3582(c)(2) resentencings

In U.S. v. Phillips, No. 08-17248 (Feb. 23, 2010), the Court held that the seven-day deadline for correction of sentence under Fed. R. Crim. P. 35(a) [now 14-days, as of Dec. 1, 2009] applies to sentences imposed in response to a motion to reduce sentence under 18 U.S.C. § 3582(c)(2). Because the 7-day deadline is jurisdictional, the district court did not have jurisdiction to consider the government’s motion for reconsideration, which was filed more than 7-days after the court resentenced the defendant under § 3582(c)(2). Consequently, the Court vacated the amended sentence and remanded the case with instructions to reimpose the originally (defense-favorable, though legally incorrect) § 3582(c)(2) sentence.

The Court rejected the government’s argument that Rule 35(a) did not apply to § 3582(c)(2) resentencings. The Court noted that while § 3582(c)(2) proceedings are not the same as the original sentencing, the court is still “sentencing.” Further, § 3582 expressly prohibits modification of sentence after it is entered except under specified conditions – not present in this case.

Duran: Suitcase Scandal Foreign Agent Conviction Affirmed

In United States v. Duran, No. 09-11446 (Feb. 16, 2010), the Court affirmed the convictions of a Venezuelan citizen for acting as an agent of a foreign organization, without prior notification of the Attorney General, in violation of 18 U.S.C. §§ 371 and 951.

The case arose out of the “Suitcase Scandal” involving the seizure of $800,000 in cash from a Venezuelan entering Argentina, cash intended, it was speculated, for the presidential candidate Cristina Fernandez de Kirchner. Duran, acting on behalf of Venezuela, had meetings in Miami in an effort to conceal responsibility for the $800,000.

The Court rejected Duran’s argument that the government had to prove that he had knowledge of the foreign agent registration requirement. The failure to register offense is a general intent offense, which does not require proof of actual knowledge. The Court also rejected the argument that the statute only punishes conduct that related to espionage, pointing out that the registration requirement applies regardless of the activity at issue, so long as it is on behalf of a foreign government.

The Court rejected the argument that Duran should have been allowed to present evidence of his ignorance of the registration requirement, because knowledge of the requirement is not an element of the offense.

The Court also rejected Duran’s argument that statements showing his lack of intent to act as an agent of Venezuela should have been admitted, finding them not sufficiently probative to constitute reversible error.

The Court rejected Duran’s 404(b) challenge to the admission of evidence of his giving kickbacks to Venezuelan government, finding that the evidence showed Duran’s intent and motive. Further, the evidence was subject to a limiting instruction. In addition, the evidence was admissible to rebut Duran’s entrapment defense.

Arnold: Granting Habeas Relief based on Brady violation

In Arnold v. Sec. Dep’t of Corrections, No. 09-11911 (Feb. 8, 2010), the Court adopted the opinion of the district court in the Middle District of Florida granting habeas relief to a Florida inmate who alleged a Brady violation based on undisclosed criminal activity by the police officer who was a primary investigator in his own case.

The district court opinion found no procedural default: it recognized that Arnold’s federal petition “slightly expanded” upon his post-conviction state claims, but the two were “the same Brady claim.”

The opinion rejected the State’s argument that, since the prosecution itself was, like Arnold, unaware of the police officer’s corrupt activities, it could not deemed to have “suppressed” this evidence. The opinion noted that the police officer was part of the “prosecution team,” and therefore his own concealment of his activities sufficed for purposes of establishing a Brady violation. Moreover, impeachment of the police officer based on his activities could have changed the outcome of the trial, because the officer testified against Arnold and provided vital identification testimony. The opinion rejected the argument that the impeachment evidence would not have been admissible, pointing out that it might actually have been unnecessary given the State’s admission that, had it known of the police officer’s activities, it would not have called him as a witness.

Patterson: Intended Loss Measured by Defendant's "Ambition"

In U.S. v. Patterson, No. 09-13354 (Feb. 8, 2010), the Court found no plain error in a calculation of “loss” for sentencing enhancement purposes under the Guidelines that resulted in dollar amount twice as large as the amount of restitution.

The Court noted that “loss” encompasses “actual loss,” or “intended loss,” whichever is greater. In calculating “intended loss,” the sentencing court uses the “reasonable mathematical limit” of an offender’s scheme; “A criminal pays the price for the ambition of his acts, not their thoroughness.” “Restitution, on the other hand, must be based on the amount of loss actually caused by the defendant’s conduct.” Consequently, the law does not require “a simple symmetry between loss and restitution.”

The Court declined to reach Patterson’s ineffective assistance of counsel claim, based on the failure to object to the sentence, noting that § 2255 is the “preferred means” for bringing such claims.

Green: Counsel Ineffective, But not prejudicially so

In Green v. Nelson, No. 08-11212 (Feb. 4, 2010), the Court granted partial habeas relief to a Georgia inmate convicted of aggravated sodomy and rape.

The Court agreed with Green that his trial counsel was ineffective for failing to move to suppress blood and DNA evidence on the ground that this evidence was obtained based on a false affidavit. The affidavit did contain materially false information; trial counsel did not make a strategic decision not to suppress the evidence, but failed to realize that the affidavit was false. However, the ineffectiveness did not prejudice Green, because other correct information in the affidavit would have sufficed to establish probable cause for the search for blood and DNA evidence.

Turning to the sufficiency of the evidence of the aggravated sodomy, the Court agreed with Green that there was insufficient evidence to support this conviction. Green was charged with having placed his penis in the anus of his victim. However, the Court found no evidence of this contact.

Holmes: Sufficient 1028A evidence

In U.S. v. Holmes, No. 09-14035 (Feb. 4, 2010), the Court rejected a sufficiency of the evidence challenge to a conviction of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). The defendant argued that there was insufficient evidence that she knew that Julie Ann Overton, the person whose identity Holmes fraudulently used, was an “actual person.”

The Court noted that the government presented evidence of the rigorous identification processes to which the personal information Holmes submitted about Overton was subjected. Holmes’ willingness to subject the personal information to such scrutiny established that Holmes knew, all along, that the information belonged to a real person. Further, Holmes would have known Overton’s actual existence from the repeated successful use of her personal information to obtain a passport, a driver’s licence, and identification cards.

Jules: 3582(c)(2) Requires Advance Notice of New Information

In U.S. v. Jules, No. 08-13629 (Feb. 2, 2010), the Court held that a district court that intends to rely on new information in deciding a motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) must give the defendant an opportunity to respond to the new information.

Prior to Jules’ § 3582(c)(2) resentencing, the district court received information from Probation about Jules’ alleged marijuana use while incarcerated. Based on this information, the district court denied a sentence reduction. Jules was not given any opportunity to respond to the new information.

On appeal, the Court noted that the Guidelines state that parties should be given an adequate opportunity to present information regarding sentencing factors in dispute. Further, the Court’s own caselaw requires an adequate notice and opportunity to contest facts at sentencing. The Court also relied on caselaw in two other Circuits which recognize a defendant’s right to notice of new facts on which the district court relies in a 3582(c)(2) determination. The Court distinguished caselaw in other Circuits on which the government relied.

The Court noted that on remand, the district court could hold a hearing on the new information about Jules, or may instead allow the parties to contest new information in writing.