In U.S. v. Dominguez, No. 07-13405 (Oct. 31, 2011) (2-1) (Tjoflat, J. dissenting in part), the Court reversed convictions arising under 8 U.S.C. § 1324 for transporting and harboring aliens (Cuban baseball players) based on the insufficiency of the evidence, but affirmed convictions for conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and abetting a smuggle.
The Court found that the evidence was insufficient to support convictions for transporting aliens within the United States to further illegal status, pointing that while they lived in the United States the baseball players played baseball, went out with friends, ate at restaurants, watched baseball games, and were showcased in front of Major League baseball scouts. The players lived freely and openly “and in no way acted in a manner suggesting they were avoiding immigration officials.” Contrary to the government’s contention, the three-month wait before the players were taken to immigration officials did not suffice to show illegal transportation,because there is no specific time requirement for presenting Cubans to immigration officials.
For the same reason, the Court reversed the “harboring” aliens convictions, finding that Dominguez did not facilitate the players’ escaping detection.
The Court affirmed convictions for conspiring to bring aliens to the United States, noting the testimony of a government cooperating witness that “he had an extensive and ongoing smuggling relationship with Dominguez,” including a $125,000 payment to fund the smuggling of the five Cuban baseball players.
The Court also affirmed aiding and abetting convictions, noting that Dominguez paid for the smuggling of the Cuban baseball players. The Court rejected the argument that the evidence was insufficient because Dominguez did not earn a substantial fee for signing the players to Major League contracts, noting that “financial success” is not an element of the offense.
The Court rejected the argument that the Wet Foot/Dry Foot policy of the Cuban Adjustment Act precluded having the requisite mens rea to unlawfully smuggle Cuban aliens. The Court found that the statute does not require “specific intent,” or “willfully” smuggling, but only a “reckless disregard” for the alien’s unauthorized status. Further, an undocumented alien who is in the United States must still be paroled, a process that reclassifies the alien from one who is illegally in the United States to one who is legally in the United States. Thus, the Wet Foot/Dry Foot policy “is not relevant to a conviction for smuggling Cubans into the United States.” For the same reason, the Court found no error in failing to instruct the jury about the Wet Foot/Dry Foot policy.
Monday, October 31, 2011
Friday, October 28, 2011
Guzman: Granting habeas relief based on false testimony
In Guzman v. Sec. Dep’t of Corrections, No. 10-11442 (Oct. 27, 2011), the Court affirmed the grant of habeas relief to a Florida death row inmate. The Court found that the Florida Supreme Court unreasonably applied Giglio when it ruled that Guzman was not entitled to a new trial based on false testimony presented to the jury.
The Florida Supreme Court ruled that while false testimony was presented at trial – two detectives falsely testified that a government witness received no benefit for cooperation when the witness was in fact paid $500 – this testimony was not “material.” The Florida Supreme Court reasoned that the witness’ credibility was amply impeached at trial. Reversing, the Court found that the impeachment was not so complete that there was “no reasonable possibility” that the false testimony could have affected the verdict. In addition, the remaining evidence of guilt was sufficiently “weak” “circumstantial” and “far from overwhelming” to foreclose an impact on the verdict. The witness was “critical” to the State’s case against Guzman, because she contradicted Guzman’s testimony about the events surrounding the murder. In addition, the witness changed her account after receiving $500 reward money.
The Court also found it significant that Guzman testified in his defense at trial, presented witnesses, and otherwise challenged the State’s evidence.
The Florida Supreme Court ruled that while false testimony was presented at trial – two detectives falsely testified that a government witness received no benefit for cooperation when the witness was in fact paid $500 – this testimony was not “material.” The Florida Supreme Court reasoned that the witness’ credibility was amply impeached at trial. Reversing, the Court found that the impeachment was not so complete that there was “no reasonable possibility” that the false testimony could have affected the verdict. In addition, the remaining evidence of guilt was sufficiently “weak” “circumstantial” and “far from overwhelming” to foreclose an impact on the verdict. The witness was “critical” to the State’s case against Guzman, because she contradicted Guzman’s testimony about the events surrounding the murder. In addition, the witness changed her account after receiving $500 reward money.
The Court also found it significant that Guzman testified in his defense at trial, presented witnesses, and otherwise challenged the State’s evidence.
Thursday, October 27, 2011
John Doe: "Unwavering Confidence" support Aggravated Identity Theft Conviction
In U.S. v. John Doe, No 09-15869 (Oct. 26, 2011), the Court held that there was sufficient evidence to sustain convictions for aggravated identity theft in connection with a passport application, in violation of 18 U.S.C. § 1028A(a)(1).
Citing U.S. v. Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010) and U.S. v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the Court noted that proof that a defendant "knowingly" used another person’s identity can be established based on circumstantial evidence such as the defendant’s prior use of this person’s identity to obtain a driver’s license or other identification. Here, John Doe had used the same person’s identity to obtain a Florida driver’s licence just months before attempting to use the identity to obtain a passport.
The Court also noted the defendant’s "unwavering confidence" in the accuracy of the identity he was using, as he returned to the Passport Agency, knowing that the Agency could have investigated whether the identifying information belonged to a real person.
Turning to sentencing, the Court rejected the argument that any misstatements the defendant gave about his name to a probation officer preparing a pretrial services report for a magistrate judge were "immaterial" to the prosecution, and therefore did not justify the imposition of a two-level "obstruction of justice" enhancement pursuant to USSG § 3C1.1. The Court noted that the "threshold for materiality is ‘conspicuously low’" with regard to § 3C1.1 enhancements. No actual, significant obstruction or hindrance is required.
The Court also rejected the argument that because pretrial services did not give him any Miranda warnings, the application of the enhancement violated the Fifth Amendment. The Court analogized an interview with pretrial services to "routine booking" questions where Miranda warnings are not required.
Citing U.S. v. Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010) and U.S. v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the Court noted that proof that a defendant "knowingly" used another person’s identity can be established based on circumstantial evidence such as the defendant’s prior use of this person’s identity to obtain a driver’s license or other identification. Here, John Doe had used the same person’s identity to obtain a Florida driver’s licence just months before attempting to use the identity to obtain a passport.
The Court also noted the defendant’s "unwavering confidence" in the accuracy of the identity he was using, as he returned to the Passport Agency, knowing that the Agency could have investigated whether the identifying information belonged to a real person.
Turning to sentencing, the Court rejected the argument that any misstatements the defendant gave about his name to a probation officer preparing a pretrial services report for a magistrate judge were "immaterial" to the prosecution, and therefore did not justify the imposition of a two-level "obstruction of justice" enhancement pursuant to USSG § 3C1.1. The Court noted that the "threshold for materiality is ‘conspicuously low’" with regard to § 3C1.1 enhancements. No actual, significant obstruction or hindrance is required.
The Court also rejected the argument that because pretrial services did not give him any Miranda warnings, the application of the enhancement violated the Fifth Amendment. The Court analogized an interview with pretrial services to "routine booking" questions where Miranda warnings are not required.
Perez: Counsel can't substitute for defendant's allocution
In U.S. v. Perez, No. 09-13409 (Oct. 26, 2011), the Court affirmed Hobbs Act and firearm possession convictions of several defendants arising out of plans to rob a check-cashing store and a fictional cocaine stash house, but, on plain error review, reversed one defendant’s sentence because the district court failed to afford him his right of allocution as required by Federal Rule of Criminal Procedure 32.
The Court rejected one defendant’s argument that the evidence was insufficient to support “constructive possession” of a firearm. The Court found sufficient evidence that the defendant knew of the presence of firearms, based on conversations that predicted the need for guns, and his direct involvement in the crime, including his possession of five stocking caps for use in an attempted robbery.
The Court rejected the argument that a prosecution witness, who invoked his Fifth Amendment right to silence at a pre-trial deposition, should have been compelled to answer defense questions. The Court noted that because the witness’ answers could plausibly contradict the statements he made in a signed affidavit, he would risk prosecution for perjury, and the district court therefore correctly did not compel answers in derogation of the witness’ right to silence.
The Court also rejected the argument that evidence obtained through wiretaps should have been suppressed that the government, because the government failed to demonstrate that it needed to conduct wiretap surveillance, as required by 18 U.S.C. § 2518(1)(c). The Court noted that without a wiretap the government “had only limited knowledge of the full extent” of the criminal activities of the defendants. The government had sufficiently described the limitations of alternative surveillance methods to justify use of a wiretap.
Turning to sentencing, the Court ruled that even though at sentencing defense counsel answered the district court on behalf of the defendant that the defendant “doesn’t wish to address the Court,” this did not satisfy Fed. R. Crim. P. 32. This rule requires the defendant to be aware of his right to allocute. Here, there was no evidence of such knowledge. Because it is presumed that a denial of the defendant’s right to allocute is prejudicial whenever the possibility of a lower sentence exists, the error affected the defendant’s substantial rights. The Court therefore vacated the sentence and remanded for resentencing.
The Court rejected one defendant’s argument that the evidence was insufficient to support “constructive possession” of a firearm. The Court found sufficient evidence that the defendant knew of the presence of firearms, based on conversations that predicted the need for guns, and his direct involvement in the crime, including his possession of five stocking caps for use in an attempted robbery.
The Court rejected the argument that a prosecution witness, who invoked his Fifth Amendment right to silence at a pre-trial deposition, should have been compelled to answer defense questions. The Court noted that because the witness’ answers could plausibly contradict the statements he made in a signed affidavit, he would risk prosecution for perjury, and the district court therefore correctly did not compel answers in derogation of the witness’ right to silence.
The Court also rejected the argument that evidence obtained through wiretaps should have been suppressed that the government, because the government failed to demonstrate that it needed to conduct wiretap surveillance, as required by 18 U.S.C. § 2518(1)(c). The Court noted that without a wiretap the government “had only limited knowledge of the full extent” of the criminal activities of the defendants. The government had sufficiently described the limitations of alternative surveillance methods to justify use of a wiretap.
Turning to sentencing, the Court ruled that even though at sentencing defense counsel answered the district court on behalf of the defendant that the defendant “doesn’t wish to address the Court,” this did not satisfy Fed. R. Crim. P. 32. This rule requires the defendant to be aware of his right to allocute. Here, there was no evidence of such knowledge. Because it is presumed that a denial of the defendant’s right to allocute is prejudicial whenever the possibility of a lower sentence exists, the error affected the defendant’s substantial rights. The Court therefore vacated the sentence and remanded for resentencing.
Friday, October 21, 2011
Delgado: Double Jeopardy Inapplicable When Conviction Overturned on Legal Grounds
In Delgado v. Florida Dep’t of Corrections, No. 10-13490 (Oct. 13, 2011), the Court denied habeas relief to a Florida death row inmate convicted of two 1990 murders.
Delgado argued that Double Jeopardy should have precluded his re-prosecution for murder after his initial conviction for murder was overturned on appeal. The Court noted, however, that Double Jeopardy does not bar re-prosecution after a successful appeal unless the conviction was overturned because of the insufficiency of the evidence, i.e. the equivalent of a jury’s acquittal. In Delgado’s case the conviction was overturned not because of insufficient facts, but on the ground that it was obtained under a legally inadequate theory, that is, a theory of felony murder that did not require a showing that the predicate burglary involved surreptitious entry into a dwelling. Double Jeopardy, therefore, did not bar re-prosecution, and Delgado could not obtain habeas relief from his conviction or death sentence.
Delgado argued that Double Jeopardy should have precluded his re-prosecution for murder after his initial conviction for murder was overturned on appeal. The Court noted, however, that Double Jeopardy does not bar re-prosecution after a successful appeal unless the conviction was overturned because of the insufficiency of the evidence, i.e. the equivalent of a jury’s acquittal. In Delgado’s case the conviction was overturned not because of insufficient facts, but on the ground that it was obtained under a legally inadequate theory, that is, a theory of felony murder that did not require a showing that the predicate burglary involved surreptitious entry into a dwelling. Double Jeopardy, therefore, did not bar re-prosecution, and Delgado could not obtain habeas relief from his conviction or death sentence.
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