Lambrix: Denial of Application for Second or Successive Habeas Petition

In In re Lambrix, No. 10-14476 (Oct. 26, 2010), the Court denied the application of a Florida death row inmate, convicted of a murder that occurred in 1983, for leave to file a second or successive habeas corpus petition.

The Court noted that the standard for a second or successive petition was a showing that facts could not have been discovered earlier, and that, but for a constitutional error, no reasonable factfinder would find the defendant guilty. Lambrix relied on the recantation of one of the prosecution’s witnesses. The Court noted that the recantation could have been discovered earlier, and that reasonable factfinders could still have found Lambrix guilty. The Court found Lambrix’s other allegations to similarly lack merit.

Wayerski: Child Pornography Conspiracy Conviction Duplicative

In U.S. v. Wayerski, No. 09-11379 (Oct. 26, 2010), the Court held that convictions of defendants for both engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g), and in a child pornography conspiracy, in violation of 18 U.S.C. § 2252A, were unduly duplicative, in violation of Double Jeopardy, but otherwise affirmed all convictions.

To avoid unconstitutional duplicativeness, a criminal conviction must involve proof of a fact that another conviction does not involve. Here, the “in concert” element of the exploitation enterprise offense involved the same proof of agreement that the conspiracy offense involved. Therefore the two convictions were duplicative. The Court therefore vacated the conspiracy convictions and remanded for resentencing.

The Court, however, rejected a vagueness challenge to the child exploitation statute. The Court noted that the statute, which criminalizes commission of several enumerated child pornography felonies, on three or more separate instances, involving more than one victim, in concert with three or more other persons, squarely applied to the defendants elaborate and secret scheme for using the internet to share images of child pornography. The Court noted that one to whose conduct a statute squarely applies may not successfully challenge it for vagueness. Thus, the Court found unpersuasive the defendants’ hypothetical that one could violate the statute in a manner of seconds by exchanging images over the internet.

Turning to sentencing, the Court rejected the argument that, because the defendants’ conduct in avoiding detection occurred before arrest, an obstruction of justice enhancement should not have been imposed. The Court pointed out that the obstruction of justice enhancement covers conduct that occurred prior to arrest, and prior to the start of an investigation.

The Court rejected one defendant’s argument that the district court erred in finding that he posed a risk to the community if released from prison, because a defense psychologist testified otherwise at sentencing. The Court noted that the district court relied on other evidence, including the defendant’s diaries, which the psychologist may not have reviewed. The Court found that the 360 and 365 months sentences imposed on two defendants were not excessive, noting the “harm caused by caused by child pornography offenses.”

Mateos: Medicare Fraud Convictions and Sentences Affirmed

In U.S. v. Alvarez, No. 08-17178 (Oct. 19, 2010), the Court affirmed Medicare fraud convictions and sentences.

The Court agreed with defendant Alvarez that the district court erred when it excluded a recorded statement made by one Medicare conspirator to Alvarez that “there’s no fraud whatsoever here” – a statement that indicated that Alvarez was not privy to the scheme. The statement was not hearsay, because Alvarez did not seek to admit it for its truth, but to show that Alvarez was not aware of the fraud. It therefore did not matter whether, as the district court found, the statement did not fit within a hearsay exception, because the statement was not hearsay in the first place.

However, the error in excluding the recorded statement was harmless because the statement was effectively admitted through witness testimony.

The Court found no error in the district court’s admission of evidence that co-defendant Mateos had been married to a ringleader of the fraud. The Court did not find this evidence so “inflammatory” as to render the district court’s cautionary instruction ineffective.

Turning to sentencing, the Court found that the 30-year sentence imposed on Alvarez was not outside the range of reasonable sentences. The Court recognized the “troubling” disparity with lesser sentences imposed on more culpable co-conspirators. However, these defendants provided substantial assistance to the government. In addition, the Court found that the district court’s reasons for an upward variance were justified: Alvarez was a doctor who breached her position of trust; the fraud lasted over a period of months; Alvarez followed a lower standard of care with regard to the health of her patients; Medicare fraud was rampant in the Miami area; Alvarez “blatantly lied” during her testimony at trial and showed “no remorse.” In addition, Congress recently amended the Sentencing Guidelines for Medicare fraud, and under the new Guidelines Alvarez’ 30-year sentence fell at the high end of the Guidelines.

The Court rejected Mateos’ argument that the district court erroneously found her responsible for the entire intended loss (more than $9 million). The evidence showed that Mateos was aware of the essence of the fraud, and the district court therefore held her responsible for losses stemming from all reasonably foreseeable acts of coconspirators.

Kobal: Absence of brain damage evidence did not warrant habeas relief

In Kokal v. Sec. Dep’t of Corrections, No. 08-11722 (Oct. 18, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for the 1983 murder a sailor.

The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword.

Sistrunk: Entrapment is affirmative defense to felon in possession charge

In U.S. v. Sistrunk, No. 09-12798 (Oct. 7, 2010), the Court affirmed a conviction for being a felon in possession of a firearm.

Citing U.S. v. Deleveaux, the Court recognized that, like the defense of justification, the defense of entrapment can be raised in a felon-in-possession case, as an affirmative defense, to negate criminal liability even though the prosecution has proven all the elements of the offense. The district court therefore erred in ruling that this defense was not available to Sistrunk. However, the error in failing to give the instruction was harmless because the facts did not warrant the instruction: the government merely presented Sistrunk with an “attractive” opportunity to rob a stash house, but did not engage in “excessive pressure or manipulation.”

Gomes: FSA does not apply to pre-FSA case

In U.S. v. Gomes, No. 10-11225 (Oct. 1, 2010) (Tjoflat, Barkett, Fay), the Court held that the district court committed no error when it imposed the then-applicable statutory mandatory minimum of 120 months on a defendant convicted of trafficking in more than 50 grams of crack cocaine. The Court found that the recently enacted Fair Sentencing Act, which increased the crack cocaine quantities required to qualify for this statutory mandatory minimum punishment, did not change the result, because the Act took effect after the defendant committed his crime, and the saving clause, 1 U.S.C. § 109, bars the Fair Sentencing Act from affecting the punishment.