In U.S. v. Preacher, No. 10-10492 (Jan. 28, 2011), the Court held that an abandonment defense was not available for the offense of using a facility of interstate commerce with the intent that a murder for hire be committed.
Preacher used a cell phone to contact someone with the idea of hiring someone to commit murder. Preacher later got scared and “cancelled the deal.” Nevertheless, the offense of using a facility of interstate commerce was complete. The defense of abandonment therefore was not available to Preacher. The Court affirmed his conviction.
Friday, January 28, 2011
McDaniel: Child pornography possessor proximately causes harm
In U.S. v. McDaniel, No. 09-15038 (Jan. 28, 2011), the Court affirmed a judgment of restitution in favor of a victim of child pornography.
The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography.
The Court noted that in order to recover restitution from a defendant, a victim must show that the defendant was the “proximate cause” of her monetary damages.
The Court found that McDaniel, though not the creator of the pornography that pictured the victim but only a possessor, nonetheless proximately caused the “slow acid drip” of trauma that exacerbated the victim’s emotional issues. The Court therefore affirmed the $12,750 restitution order.
The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography.
The Court noted that in order to recover restitution from a defendant, a victim must show that the defendant was the “proximate cause” of her monetary damages.
The Court found that McDaniel, though not the creator of the pornography that pictured the victim but only a possessor, nonetheless proximately caused the “slow acid drip” of trauma that exacerbated the victim’s emotional issues. The Court therefore affirmed the $12,750 restitution order.
Wednesday, January 26, 2011
Shannon: Purchase is not Possession
In U.S. v. Shannon, No. 10-10599 (Jan. 26, 2011), the Court held that a prior conviction for the purchase of cocaine in violation of Florida law did not qualify as a “controlled substance offense” for purposes of “career offender” status under the Guidelines.
The Court noted that the Florida statute encompassed different conduct, but because the record before the district court did not indicate the statutorily prohibited act for which the defendant was convicted, the Court was required to assume that his act was the “least prohibited act,” i.e., “purchase.”
The Court rejected the government’s argument that purchase of cocaine was equivalent to “possession” of cocaine. The Court noted that the Florida statute distinguished between “purchase” and “possession.” In addition, the career offender Guideline referred to possession, not purchase.
The Court noted that the Florida statute encompassed different conduct, but because the record before the district court did not indicate the statutorily prohibited act for which the defendant was convicted, the Court was required to assume that his act was the “least prohibited act,” i.e., “purchase.”
The Court rejected the government’s argument that purchase of cocaine was equivalent to “possession” of cocaine. The Court noted that the Florida statute distinguished between “purchase” and “possession.” In addition, the career offender Guideline referred to possession, not purchase.
Tuesday, January 25, 2011
Jerchower: Amendment 732 was Clarifying Amendment
In U.S. v. Jerchower, No. 09-13795 (Jan. 25, 2011), the Court held that Amendment 732 was a “clarifying amendment” and therefore retroactively applicable.
Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.
The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.
In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.
The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.
Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.
The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.
In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.
The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.
Friday, January 14, 2011
Diaz: Involuntary Medication to Render Defendant Mentally Competent for Trial
In U.S. v. Diaz, No. 09-15421 (Jan. 12, 2011), the Court affirmed a district court’s grant of permission to medicate a defendant involuntarily in order to render him mentally competent to stand trial.
After reviewing at length the expert reports regarding Diaz’s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a “substantial likelihood that anti-psychotic medication will restore Diaz to competency,” and that this medication “is not substantially likely to cause side effects that would interfere with Diaz’s ability to assist counsel.” The Court credited expert opinions that side effects “easily can be controlled with supplemental medication.” The Court also noted that if the side effects could not be controlled, Diaz would be switched to another treatment regimen.
The Court rejected Diaz’s argument that the government made only “token” efforts to take his medication voluntarily. The Court noted that Diaz had refused medication since 2008. The Court further noted that psychotherapy is not an effective alternative to treat schizophrenia in the absence of medication, because schizophrenia is caused by a biological condition, a chemical imbalance.
After reviewing at length the expert reports regarding Diaz’s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a “substantial likelihood that anti-psychotic medication will restore Diaz to competency,” and that this medication “is not substantially likely to cause side effects that would interfere with Diaz’s ability to assist counsel.” The Court credited expert opinions that side effects “easily can be controlled with supplemental medication.” The Court also noted that if the side effects could not be controlled, Diaz would be switched to another treatment regimen.
The Court rejected Diaz’s argument that the government made only “token” efforts to take his medication voluntarily. The Court noted that Diaz had refused medication since 2008. The Court further noted that psychotherapy is not an effective alternative to treat schizophrenia in the absence of medication, because schizophrenia is caused by a biological condition, a chemical imbalance.
Diaz: Freedom qualified as "thing of value"
In U.S. v Townsend, No. 09-12 (Jan. 13, 2011), the Court affirmed convictions of a Miami-Dade County corrections officer, convicted for giving a defendant on pretrial release greater freedoms in exchange for bribes.
The Court found that giving greater freedom to a defendant on pretrial release qualified as a “thing of value of $5,000 or more” for purposes of the bribery statute, 18 U.S.C. § 666. The Court held that a thing of value can be “intangible.” Further, because the monetary value of the bribes paid to Townsend totaled $5,280, the value of this intangible (the defendant’s greater freedom) exceeded $5,000.
The Court rejected sufficiency of the evidence challenges to Townsend’ remaining convictions for obstruction of justice, finding that phone calls Townsend made to the defendant to warn him of a pending search of his home, and other evidence, proved these violations.
The Court found that giving greater freedom to a defendant on pretrial release qualified as a “thing of value of $5,000 or more” for purposes of the bribery statute, 18 U.S.C. § 666. The Court held that a thing of value can be “intangible.” Further, because the monetary value of the bribes paid to Townsend totaled $5,280, the value of this intangible (the defendant’s greater freedom) exceeded $5,000.
The Court rejected sufficiency of the evidence challenges to Townsend’ remaining convictions for obstruction of justice, finding that phone calls Townsend made to the defendant to warn him of a pending search of his home, and other evidence, proved these violations.
Monday, January 10, 2011
Ruff: Appeal Waiver is valid
In U.S. v. Ruff, No. 09-16304 (Jan. 5, 2011), the Court dismissed an appeal because the defendant signed an appeal waiver in connection with his guilty plea.
The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver.
The Court noted two exceptions to Ruff's appeal waiver: the imposition of a sentence above the statutory maximum, or an upward departure. Because Ruff pled guilty to, inter allia, possession of a firearm in relation to a drug trafficking crime, an offense for which the statutory maximum was life, and to possession of firearms as a convicted felon, which also carried a maximum of life because Ruff qualified as an armed career criminal, and because his sentence was 19 years, Ruff’s sentence did not exceed the statutory maximum.
The Court rejected Ruff’s argument that the erroneous imposition of a consecutive sentence resulted in an upward departure, and therefore was not subject to his appeal waiver. The Court noted that Ruff’s sentence was below the Guideline range, and therefore was not an upward departure. The Court added that Ruff’s consecutive sentence challenge was now foreclosed by the Supreme Court’s 2010 decision in Abbott v. U.S
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The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver.
The Court noted two exceptions to Ruff's appeal waiver: the imposition of a sentence above the statutory maximum, or an upward departure. Because Ruff pled guilty to, inter allia, possession of a firearm in relation to a drug trafficking crime, an offense for which the statutory maximum was life, and to possession of firearms as a convicted felon, which also carried a maximum of life because Ruff qualified as an armed career criminal, and because his sentence was 19 years, Ruff’s sentence did not exceed the statutory maximum.
The Court rejected Ruff’s argument that the erroneous imposition of a consecutive sentence resulted in an upward departure, and therefore was not subject to his appeal waiver. The Court noted that Ruff’s sentence was below the Guideline range, and therefore was not an upward departure. The Court added that Ruff’s consecutive sentence challenge was now foreclosed by the Supreme Court’s 2010 decision in Abbott v. U.S
This e-mail contains PRIVILEGED and CONFIDENTIAL information intended only for use of the addressee(s) named above. If you are not the intended recipient of this e-mail, or an authorized employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please notify us by reply e-mail. Thank you for your cooperation.
Harvey: Not Ineffective to concede client's guilt?
In Harvey v. Warden, No. 08-15868 (Jan. 6, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1985 murders.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.
Wednesday, January 05, 2011
Mejia: "Conviction" under Immigration law
In Mejia v. U.S. Dep’t of Homeland Security, No. 09-14273 (Jan. 4, 2011), the Court held that a prior guilty plea, followed by a finding of guilt and a sentence of time served, in Florida court, qualified as a prior “conviction” for purposes of the immigration laws. Consequently, Mejia, an alien, was ineligible from protection from removal from the United States.
The Court recognized that no formal punishment was imposed. However, a finding of guilt, coupled with a sentence for time served, qualified as a “conviction,” because these two together brought finality to the case and constituted an “adjudication.” Moreover, there was no indication that adjudication had been withheld.
The Court recognized that under Florida law, a sentence of time served is not a sentence. However, federal law, not Florida law, controlled the inquiry. Under federal law, time served qualifies as a sentence.
The Court recognized that no formal punishment was imposed. However, a finding of guilt, coupled with a sentence for time served, qualified as a “conviction,” because these two together brought finality to the case and constituted an “adjudication.” Moreover, there was no indication that adjudication had been withheld.
The Court recognized that under Florida law, a sentence of time served is not a sentence. However, federal law, not Florida law, controlled the inquiry. Under federal law, time served qualifies as a sentence.
Tuesday, January 04, 2011
Gonzalez: Confrontation Clause Error Was Harmless
In Gonzalez v. Sec. Fla. Dep’t of Corrections, No. 09-15599 (Jan. 3, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court did not reach the issue whether Gonzalez’ post-collateral motion in Florida State Court was “properly filed” for purposes of tolling the federal habeas statute of limitations, and instead denied the petition on the merits.
The Court rejected the argument that the Confrontation Clause error in admitting at trial the confession of Gonzalez’ non-testifying co-defendants was not harmless error. The Court agreed with the Florida Supreme Court that in light of Gonzalez’ own confession, and other evidence, the error in admitting this evidence was harmless.
The Court also rejected the argument that the Florida state courts erroneously disallowed two of Gonzalez’ peremptory challenges. The Court noted that the Supreme Court has held that entitlement to peremptory challenges is a matter of State law, and that there is no constitutional right to peremptory challenges. Consequently, the erroneous denial of a peremptory challenge cannot establish a constitutional violation.
The Court did not reach the issue whether Gonzalez’ post-collateral motion in Florida State Court was “properly filed” for purposes of tolling the federal habeas statute of limitations, and instead denied the petition on the merits.
The Court rejected the argument that the Confrontation Clause error in admitting at trial the confession of Gonzalez’ non-testifying co-defendants was not harmless error. The Court agreed with the Florida Supreme Court that in light of Gonzalez’ own confession, and other evidence, the error in admitting this evidence was harmless.
The Court also rejected the argument that the Florida state courts erroneously disallowed two of Gonzalez’ peremptory challenges. The Court noted that the Supreme Court has held that entitlement to peremptory challenges is a matter of State law, and that there is no constitutional right to peremptory challenges. Consequently, the erroneous denial of a peremptory challenge cannot establish a constitutional violation.
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