In Jones v. Sec. Dep’t of Corrections, No. 08-12289 (June 28, 2011), the Court denied habeas relief to a Florida inmate on death row for two 1987 murders.
The Court deferred to the Florida courts’ determination that defense counsel was not ineffective, even after he stated in open court: “I want nothing further to do with [my client].” The Court stated: “We do not – and the law does not – assume that lawyers will fail to do their duty, even when the duty is painful and difficult.”
Wednesday, June 29, 2011
Monday, June 27, 2011
Ladson: Government failed to strictly comply with 851 notice requirement
In U.S. v. Ladson, No. 10-10151 (June 24, 2011), the Court vacated a sentence of life imprisonment, because the government did not properly serve its 21 U.S.C. § 851 notice of enhanced sentence. The Court noted that § 851 requires the government to both file and serve the notice before trial. The government is required to”strictly comply with the service requirement before trial.”
The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.
The emails of trial counsel also did not show that the notice had been served.
Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.
The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.
The emails of trial counsel also did not show that the notice had been served.
Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.
Friday, June 24, 2011
Vera Rojas: FSA applies to crack offenders sentenced after August 3, 2010
In U.S. v. Vega Rojas, No 10-14662 (June 24, 2011), the Court (Wilson, Martin, Anderson), held that the Fair Sentencing Act applied to crack cocaine offenders sentenced after the effective date of the FSA, August 3, 2010.
The Court distinguished U.S. v. Gomes, in which it had held that the FSA did not apply to a defendant sentenced prior to the FSA’s effective date.
The Court rejected the government’s reliance on the savings clause, 1 U.S.C. § 109 and Warden v. Marrero, on the ground that the repealing statute in that case specifically sought to preserve the harsher penalty for prosecutions initiated before its effective date. The FSA, by contrast, was “silent” on this point. The Court noted that Congress would not have intended for courts to sentence crack offenders under the old, higher mandatory minimums, until August 3, 2015, when the five-year statute of limitations would run. The Court noted that Congress granted the Sentencing Commission emergency authority to amend the crack cocaine Guidelines. Asking district courts to consider the date of the offense when determining the statutory minimum, and the sentencing date when applying the Guidelines, would lead to “incongruous” results. “The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.”
The Court distinguished U.S. v. Gomes, in which it had held that the FSA did not apply to a defendant sentenced prior to the FSA’s effective date.
The Court rejected the government’s reliance on the savings clause, 1 U.S.C. § 109 and Warden v. Marrero, on the ground that the repealing statute in that case specifically sought to preserve the harsher penalty for prosecutions initiated before its effective date. The FSA, by contrast, was “silent” on this point. The Court noted that Congress would not have intended for courts to sentence crack offenders under the old, higher mandatory minimums, until August 3, 2015, when the five-year statute of limitations would run. The Court noted that Congress granted the Sentencing Commission emergency authority to amend the crack cocaine Guidelines. Asking district courts to consider the date of the offense when determining the statutory minimum, and the sentencing date when applying the Guidelines, would lead to “incongruous” results. “The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.”
Friday, June 17, 2011
Johnson: Counsel ineffective at sentencing phase
In Johnson v. Secretary, DOC, No. 09-15344 (June 14, 2011), the Court held that a Florida death row inmate, convicted of a 1979 murder, was entitled to federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.
The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.
The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.
The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.
The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.
Graham: Pro Se defendant not entitled to continuance
In U.S. v. Graham, No. 14736 (June 14, 2011), the Court affirmed mortgage fraud convictions of a defendant tried separately from accomplices in U.S. v. Hill.
The Court found no violation of Graham’s rights, when Graham, having repeatedly asked to proceed pro se, requested to be represented by counsel on the first day of trial, and was not granted a continuance to allow counsel to prepare. The Court also rejected Graham’s argument that he was not given time to hire competent counsel, pointing out that he had a year-and-a-half to decide to hire any lawyer he chose, and it was his own fault if he failed to do so. The Court found that Graham intentionally created his situation, and said it would not permit Graham to “game the system.”
The Court also rejected the argument that Graham’s due process rights were violated when he appeared at trial dressed in a prison orange suit. Graham had told the court that he was obtaining street clothing, and then failed to do so – and had no proposal for obtaining street clothing without delaying the trial. Moreover, during opening argument, Graham’s counsel “adeptly managed to use the orange suit for strategic advantage.”
Finally, the Court rejected a challenge to the opinion testimony of a government witness, who testified, as a lay witness, about his personal knowledge of mortgage fraud. The Court held that this testimony was admissible because the government established that this witness “had personal knowledge based on his participation in fraudulent real estate closings.”
The Court found no violation of Graham’s rights, when Graham, having repeatedly asked to proceed pro se, requested to be represented by counsel on the first day of trial, and was not granted a continuance to allow counsel to prepare. The Court also rejected Graham’s argument that he was not given time to hire competent counsel, pointing out that he had a year-and-a-half to decide to hire any lawyer he chose, and it was his own fault if he failed to do so. The Court found that Graham intentionally created his situation, and said it would not permit Graham to “game the system.”
The Court also rejected the argument that Graham’s due process rights were violated when he appeared at trial dressed in a prison orange suit. Graham had told the court that he was obtaining street clothing, and then failed to do so – and had no proposal for obtaining street clothing without delaying the trial. Moreover, during opening argument, Graham’s counsel “adeptly managed to use the orange suit for strategic advantage.”
Finally, the Court rejected a challenge to the opinion testimony of a government witness, who testified, as a lay witness, about his personal knowledge of mortgage fraud. The Court held that this testimony was admissible because the government established that this witness “had personal knowledge based on his participation in fraudulent real estate closings.”
Hill: Mortgage fraud convictions affirmed; Kastigar hearing required
In U.S. v. Hill, No. 07-14602 (June 14, 2011), in a 163-page opinion, the Court affirmed mortgage fraud convictions and sentences.
The Court held that it was not error to deny a severance on the ground that the district court limited the 18 defendants to a total of 16 peremptory challenges, fewer than they each would have had if tried separately. The Court noted that 16 is more than the 10 peremptory challenges allotted to a single defendant. The Court also rejected the argument that a defendant’s trial should have been severed because he was charged in only a few counts.
The Court found no error in jury selection in the failure to ask the venire whether they knew all of the witnesses who would testify at trial, because the one juror who, as it turned out, did know a witness, was an alternate juror who did not participate in deliberations.
The Court found no prima facie evidence to support a Batson challenge to the prosecution’s use of peremptory strikes to eliminate potential black jurors. The Court noted that the government only used 64% of its peremptory strikes to eliminate black venirepersons, could have excluded five more blacks than it did, and there were nine blacks left to serve on the jury. In addition, in a mortgage fraud case, “the only relevant color is the color of money, and that shade of green is race neutral.” Moreover, most of the defendants, and their lawyers, were white.
The Court rejected the argument that FRE 701 was violated by the admission of testimony of bank officials that they would not have approved loans if misrepresentations in the loan applications would have been disclosed to them. The Court noted that the topic was within the experience of the bank officers, and it did not require expert testimony to establish “that lending institutions would be reluctant to approve a loan application if they it contained false statements about material facts.”
The Court found no error in the district court’s statement that unless the defense agreed to “reasonable stipulations in order to expedite the trial proceedings,” the court would consider this in future sentencing proceedings. The Court noted that it is permissible to give a defendant a “carrot” in exchange for a guilty plea, and found that the district court had not stated at sentencing that it was imposing a longer sentence on a particular defendant because he had not entered into some stipulations.
The Court found no reversible error in the district court’s refusal to give a “good faith defense” jury instruction regarding certain charges. The Court found that the instructions requiring the jury to find that the defendants “wilfully” violated the law required the jury to rule out the possibility that the defendants actually harbored a good faith belief in the legitimacy of their scheme.
The Court rejected a challenge to the giving of a “deliberate ignorance” jury instruction, noting that even if the evidence was insufficient to support this instruction, the evidence of the defendants’ actual knowledge made the error harmless.
The Court rejected defendants’ challenges to the sufficiency of the evidence, including an appraiser’s argument based in part on the fact that the person under whose supervision she was working was not charged with any crime: “The law accommodates imperfection and is home to the idea that it is better to have some justice than none.”
The Court rejected a Double Jeopardy challenge to two convictions based on the fact that the trial court granted Rule 29 motions of acquittal orally from the bench, and then reversed itself before the conclusion of the lengthy Rule 29 hearing, and before the defense opened its case. The Court distinguished Smith v. Massachusetts, 543 U.S. 462 (2005), on the ground that in Smith the trial court reversed its judgment of acquittal after the defense had put on evidence, and after it rested its case.
Turning to one defendant’s Kastigar challenge to the government’s use of evidence against him that he proffered during immunized plea negotiations, despite a proffer agreement that, the Court found, precluded such use, the Court found that the trial court erred in failing to hold an evidentiary hearing. The Court noted that the government should have been required to prove that all of the evidence it introduced at trial – not just the evidence the defendants objected to – was derived from a source independent from the testimony that was compelled under a grant of immunity. The trial court also erred in only giving the defendant 30 minutes to review the government’s “document dump.” In addition, a prosecutor’s admission that the government “used” the defendant’s information “for leads and so forth” indicated that, unless this prosecutor testified at a hearing and could “explain” that admission, the government could not prove that it made no derivative use of the defendant’s information.
Turning to sentencing, the Court rejected the argument that sentences were procedurally unreasonable because the district court’s statements showed that it was “slavishly” adhering to the Guidelines. The Court did not so construe the district court’s remarks at sentencing.
The Court also rejected substantive reasonableness challenges to the sentences, including the sentence of 336 months imposed on Hill, noting his leadership role in a “massive” conspiracy involving $110 million of fraudulent loans.
The Court held that it was not error to deny a severance on the ground that the district court limited the 18 defendants to a total of 16 peremptory challenges, fewer than they each would have had if tried separately. The Court noted that 16 is more than the 10 peremptory challenges allotted to a single defendant. The Court also rejected the argument that a defendant’s trial should have been severed because he was charged in only a few counts.
The Court found no error in jury selection in the failure to ask the venire whether they knew all of the witnesses who would testify at trial, because the one juror who, as it turned out, did know a witness, was an alternate juror who did not participate in deliberations.
The Court found no prima facie evidence to support a Batson challenge to the prosecution’s use of peremptory strikes to eliminate potential black jurors. The Court noted that the government only used 64% of its peremptory strikes to eliminate black venirepersons, could have excluded five more blacks than it did, and there were nine blacks left to serve on the jury. In addition, in a mortgage fraud case, “the only relevant color is the color of money, and that shade of green is race neutral.” Moreover, most of the defendants, and their lawyers, were white.
The Court rejected the argument that FRE 701 was violated by the admission of testimony of bank officials that they would not have approved loans if misrepresentations in the loan applications would have been disclosed to them. The Court noted that the topic was within the experience of the bank officers, and it did not require expert testimony to establish “that lending institutions would be reluctant to approve a loan application if they it contained false statements about material facts.”
The Court found no error in the district court’s statement that unless the defense agreed to “reasonable stipulations in order to expedite the trial proceedings,” the court would consider this in future sentencing proceedings. The Court noted that it is permissible to give a defendant a “carrot” in exchange for a guilty plea, and found that the district court had not stated at sentencing that it was imposing a longer sentence on a particular defendant because he had not entered into some stipulations.
The Court found no reversible error in the district court’s refusal to give a “good faith defense” jury instruction regarding certain charges. The Court found that the instructions requiring the jury to find that the defendants “wilfully” violated the law required the jury to rule out the possibility that the defendants actually harbored a good faith belief in the legitimacy of their scheme.
The Court rejected a challenge to the giving of a “deliberate ignorance” jury instruction, noting that even if the evidence was insufficient to support this instruction, the evidence of the defendants’ actual knowledge made the error harmless.
The Court rejected defendants’ challenges to the sufficiency of the evidence, including an appraiser’s argument based in part on the fact that the person under whose supervision she was working was not charged with any crime: “The law accommodates imperfection and is home to the idea that it is better to have some justice than none.”
The Court rejected a Double Jeopardy challenge to two convictions based on the fact that the trial court granted Rule 29 motions of acquittal orally from the bench, and then reversed itself before the conclusion of the lengthy Rule 29 hearing, and before the defense opened its case. The Court distinguished Smith v. Massachusetts, 543 U.S. 462 (2005), on the ground that in Smith the trial court reversed its judgment of acquittal after the defense had put on evidence, and after it rested its case.
Turning to one defendant’s Kastigar challenge to the government’s use of evidence against him that he proffered during immunized plea negotiations, despite a proffer agreement that, the Court found, precluded such use, the Court found that the trial court erred in failing to hold an evidentiary hearing. The Court noted that the government should have been required to prove that all of the evidence it introduced at trial – not just the evidence the defendants objected to – was derived from a source independent from the testimony that was compelled under a grant of immunity. The trial court also erred in only giving the defendant 30 minutes to review the government’s “document dump.” In addition, a prosecutor’s admission that the government “used” the defendant’s information “for leads and so forth” indicated that, unless this prosecutor testified at a hearing and could “explain” that admission, the government could not prove that it made no derivative use of the defendant’s information.
Turning to sentencing, the Court rejected the argument that sentences were procedurally unreasonable because the district court’s statements showed that it was “slavishly” adhering to the Guidelines. The Court did not so construe the district court’s remarks at sentencing.
The Court also rejected substantive reasonableness challenges to the sentences, including the sentence of 336 months imposed on Hill, noting his leadership role in a “massive” conspiracy involving $110 million of fraudulent loans.
Tuesday, June 14, 2011
James: Substantial Compliance with 851(b) suffices
In U.S. v. James, No 10-10399 (June 9, 2011), the Court rejected a challenge to a “reasonable doubt” instruction where defense counsel had “invited” the error by submitting the very instruction he now challenged. Moreover, the trial court’s instruction that reasonable doubt need not exclude all “possible” doubt was consistent with the Eleventh Circuit pattern jury instructions.
The Court also rejected James’ challenge to the failure to comply with the procedures of 21 U.S.C. § 851(b), which require the district court to specifically ask the defendant whether he affirmed or denied the past convictions on which the government relied to enhance his sentence.
The Court recognized dicta in prior cases suggesting that “substantial compliance” with § 851(b) was insufficient. However, the Court found that these precedents were not binding, and other caselaw indicated that an omission can be harmless.
James had notice of the government’s intent to rely on the prior convictions. James never objected to the PSI’s descriptions of his prior convictions or to the enhancement of his sentence based on those convictions. Moreover, the district court at sentencing discussed the prior convictions with James and his counsel and gave them ample opportunity to object. Any error, therefore, was harmless.
The Court also rejected James’ challenge to the failure to comply with the procedures of 21 U.S.C. § 851(b), which require the district court to specifically ask the defendant whether he affirmed or denied the past convictions on which the government relied to enhance his sentence.
The Court recognized dicta in prior cases suggesting that “substantial compliance” with § 851(b) was insufficient. However, the Court found that these precedents were not binding, and other caselaw indicated that an omission can be harmless.
James had notice of the government’s intent to rely on the prior convictions. James never objected to the PSI’s descriptions of his prior convictions or to the enhancement of his sentence based on those convictions. Moreover, the district court at sentencing discussed the prior convictions with James and his counsel and gave them ample opportunity to object. Any error, therefore, was harmless.
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