Brown: Value Means Face Value not Actual Worth

In U.S. v. Brown, No. 10-12273 (Dec. 23, 2011), the Court affirmed convictions and a restitution order arising out of mail fraud and interstate transportation of forged securities.

The Court rejected Brown’s argument that the admission of evidence of two similar schemes involving his attempt to deposit IRS tax refund checks with forged endorsements into checking accounts in his name violated Fed. R. Evid. 404(b). The Court noted that this evidence was relevant to disprove Brown’s defense that he was the victim of identity theft in the charged transaction.

The Court also rejected Brown’s challenge to the sufficiency of the evidence. The Court found sufficient evidence from which the jury could infer that the checks at issue had a “value” of at least $5,000, the jurisdictional threshold for a violation of 18 U.S.C. § 2314. Brown argued that the checks were worthless, because they were cancelled months before they were transported in interstate commerce, but the Court found that the value was “the amount payable written on the face of the checks.” The Court cited precedent from other circuits holding that “value” means “face value,” not “actual worth.” Here the face value of the checks exceeded $5,000.

The Court also affirmed a restitution order, rejecting, based on prior Circuit precedent, Brown’s argument that the total amount should not have included losses caused by schemes not expressly charged in the indictment and outside the statute of limitations. The Court noted that the other transactions “fit well within the overarching scheme alleged in the indictment.”

Magwood: Unforeseeable Imposition of Death Penalty violates Due Process

In Magwood v. Warden, No. 07-12208 (Dec. 19, 2011), the Court granted habeas relief to an Alabama death row inmate, finding that his death-sentence, imposed for a 1979 murder of a Sheriff, violated the fair warning requirement of the Due Process Clause, because one of the aggravating circumstances that was relied upon was based on an unforeseeable and retroactive judicial expansion of statutory language.

The Court noted that at the time of Magwood’s murder, the murder of a law enforcement officer was not listed as an aggravating circumstance to qualify a person for the death penalty. However, a subsequent Alabama case suggested that this was a valid basis for imposition of the death penalty.

The Court rejected the argument that Magwood had defaulted this argument by failing to raise it in the Alabama courts, finding that because Magwood would be “actually innocent” of the death penalty, his procedural default was excused.

The Court rejected the argument that Due Process did not embody the Ex Post Facto protection against the infliction of greater punishment through the application of unforeseeable judicial interpretation of a law, noting that Magwood would otherwise be subject to the death penalty. The Court found that the Alabama case that interpreted Alabama law to make Magwood qualify for the death penalty was an “unexpected and indefensible construction of narrow and precise statutory language,” and therefore violated Due Process’ fair warning requirement.

Davila: Magistrate Judge May Not Participate in plea negotiations

In U.S. v. Davila, No 10-15310 (Dec. 21, 2010), the Court vacated a guilty plea and remanded the case with instructions to assign the case to another district judge with the instruction that the magistrate judge who handled Davila’s case be disqualified, because, during a hearing before the Magistrate Judge, he told the defendant that there may be “no viable defenses” to the charges against him, and that the defendant would receive a more favorable sentence if he pled guilty than if he stood trial.

The Court noted that, even under plain error review, the magistrate judge’s comments were grounds for reversal. Federal Rule of Procedure 11(c)(1) establishes a “bright-line” that prohibits the participation of a judge in plea negotiations under any circumstances. Judicial participation is presumed when a judge contrasts the sentence a defendant would receive if he pled guilty with the sentence he would receive if he went to trial and was found guilty. No individualized prejudice need be shown. Accordingly, the Court vacated the conviction.

Consalvo: Credibility issues not suited to habeas

In Consalvo v. Sec. Dep’t of Corrections, No. 10-10533 (Dec. 12, 2011), the Court affirmed the denial of habeas relief to a Florida death row inmate.

The Court found that all of Consalvo’s challenges to his state murder conviction involved the credibility of witnesses. “Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review.” The Court found no unreasonable factual determination by the state courts.

The Court also rejected the challenge to the sentence based on the trial court having relied on deposition testimony that was not presented in open court. The Court found this error “harmless” in light of fact that the facts referenced in the deposition testimony were also established by other competent evidence at trial.

Martinez-Gonzalez: Possession of Forgery is "Aggravated Felony"

In U.S. v. Martinez-Gonzalez, No. 10-15360 (Dec. 6, 2011), the Court affirmed the imposition of an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(a), on a defendant convicted of illegal re-entry into the United States, based on a prior conviction for an “aggravated felony”: the defendant’s prior Alabama conviction for possession of a forget document.

The Court rejected the argument that mere possession of a forged document, in contrast to the manufacture or production of forget items, did not constitute an “aggravated felony.” The Court joined all other Circuits to have considered the issue in concluding that possession of a forged document qualifies as an “aggravated felony.” The Court rejected application of the rule of lenity, finding no ambiguity because the vast majority of federal statutes that criminalize forgery proscribe possessing forged instruments or the equipment used to create those instruments.

The Court also rejected a substantive reasonableness challenge to the sentence, noting that the sentence was within the Guidelines and that the sentencing judge cited the evidence from Martinez-Gonzalez’ record of his “propensity to recidivate.”

White: Jefferson County Commissioner Convictions Affirmed

In U.S. v. White, No. 10-13654 (Nov. 29, 2011), the Court affirmed convictions and the sentence for conspiracy and federal funds bribery of a former Jefferson County, Alabama Commissioner.

The Court rejected a challenge to the sufficiency of the evidence, pointing out that the owner of a contracting firm whose contracts were approved by White on behalf of the County testified that he made cash payments to White “to keep him pretty much happy” with his firm.

The Court also rejected White’s challenge to his 120-month, below Guidelines, sentence. The Court rejected White’s argument that he should not have a received a 16-level enhancement based on the over $1 million the contracting firm received in fees from the County, because the amount of the cash payments to White were only $22,000, and because the County would have hired the contractor regardless of the cash payments White received. The Court rejected this argument, finding that the evidence of White’s involvement – his votes to approve the contracts – sufficed to show that the company’s professional fees were a benefit “received in return for” the payments, as the Guidelines provided.

The Court also rejected a substantive reasonableness challenge to the sentence, pointing out that, under U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc), vacatur on this ground is only granted if the Court is “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”