Smith: Warrantless GPS surveillance in good faith pre-Jones

In U.S. v. Smith, No. 12-11042 (Dec. 23, 2013), the Court rejected the argument that evidence should have been suppressed because it was obtained by warrantless GPS surveillance, finding that, at the time the officers installed GPS trackers on Smith’s vehicle they acted in reasonable reliance upon this Court’s then-binding precedent. After the GPS surveillance at issue in Smith’s case, the United States Supreme Court decided U.S. v. Jones, 132 S.Ct. 945 (2012), which held that placing a GPS tracking device on a suspect’s car constituted a “search” for purposes of the Fourth Amendment. Invoking Jones, Smith asked the Court to hold that the search in his case was unreasonable – an issue the Supreme Court had not reached in Jones. The Court noted that in Davis v. U.S., 131 S.Ct. 2419 (2011), the Supreme Court had held that the good faith exception to the exclusionary rule applies to searches conducted in objectively reasonable reliance on binding appellate precedent that is subsequently overruled. The Court noted that in U.S. v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), the Court’s predecessor Court had held that the warrantless use of a beeper to track a suspect’s movements on public roads involved neither a search nor a seizure under the Fourth Amendment. The Court rejected Smith’s attempt to distinguish between a beeper and a GPS tracking device, citing other cases that had rejected this same argument, and stating: “Michael [in 1981] established the constitutionality of warrantless GPS surveillance.” The police officers were not mistaken in relying on Michael “as binding precedent.” The Court acknowledged conflict with U.S. v. Katzin, 732 F.3d 187 (3rd Cir. 2013). Turning to sentencing, the Court rejected the challenge to the district court’s reliance on acquitted conduct in enhancing Smith’s sentence, noting that even after Booker sentencing courts may consider such conduct in determining the appropriate sentence.

Downs: No habeas relief for 1977 murder

In Downs v. Sec., Fla. Dep’t of Corrections, No. 12-14248 (Dec. 5, 2013), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1977 murder. The Court rejected a Brady claim, finding that the state habeas courts reasonably credited a detective testimony that he only learned after Downs’ trial of a statement by an accomplice, Johnson, that he, Johnson, not Downs, was the killer. The Court also rejected a Brady violation based on the State’s failure to disclose the identity of a jailhouse informant, pointing out that Downs knew the information that this informant also knew, and that this informant did not witness the murder. The Court also rejected an ineffective assistance of counsel claim, finding that defense counsel’s advice that Downs not take the stand in his defense not to be constitutionally incompetent. Finally, the Court found that a contingency fee arrangement in which defense counsel agreed to receive $10,000, if Downs was acquitted of all felony charges, did not create a conflict of interest that affected the adequacy of representation. Downs claimed that the contingency fee arrangement gave defense counsel an incentive not to call any witnesses at trial, thus defeating possible conspiracy charges. The Court found no prejudice in the arrangement, crediting defense counsel’s statement that it would have taken “a miracle” to get Mr. Downs acquitted of all felony charges.

Martinez: Rejecting 1st Amendment Challenges to 875(c)

In U.S. v. Martinez, No. 11-13295 (Nov. 27, 2013), the Court affirmed a conviction for knowingly transmitting a threatening communication, in violation of 18 U.S.C. § 875(c), rejecting First Amendment challenges to this statute. The Court noted that, under Supreme Court caselaw, the First Amendment does not protect “true threats.” The Court rejected the argument that a defendant’s “subjective intent” is an essential element to establishing the existence of a “true threat.” The Court held that a true threat is a statement that contains a serious expression of violent intent, and the speaker need not subjectively intend her statement to be a threat. The Court noted the “fear of violence” that true threats engender, regardless of subjective intent. The Court also rejected an overbreadth challenge to § 875(c). Because the statute is limited to “true threats,” it criminalizes no protected expressive activity. The Court distinguished true threats from cross burning, which is expressive activity that can receive First Amendment protection in certain circumstances.

Gissendaner: Counsel not ineffective

In Gissendaner v. Seaboldt, No. 12-13569 (Nov. 19, 2013), the Court denied habeas relief to a Georgia inmate sentenced to death for conspiring with her lover in 1998 to murder her husband. The Court rejected the argument that counsel was ineffective during plea negotiations, pointing out that Gissendaner herself turned down the State’s offer of a minimum 25-year sentence. The Court also rejected a Brady claim, agreeing with the state habeas court that the undisclosed notes of a witness’s statements would not have changed the outcome. Finally, the Court rejected the argument that counsel was ineffective for failing to investigate Gissendane’s alleged history of sexual abuse, noting counsel’s thorough investigation, and the unsubstantiated nature of the abuse claim. The Court also discounted the recent findings of mental health professionals, noting that Gissendaner had no history of psychiatric treatment, and the fact that they were “unpersuasive.”

Sterling: Defendant waived right to be present at trial

In U.S. v. Sterling, No. 12-12255 (Nov. 21, 2013), the Court affirmed convictions for bank robbery, use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon. The Court rejected the argument that the trial court violated the defendant’s right to be present at trial. The Court noted that trial had commenced on the day of jury selection when the court informed Sterling of his rights in an interview room, and trial proceedings were explained, and Sterling waived his right to be present at trial. The Court noted that Sterling repeatedly interrupted the judge during pretrial proceedings, and provided nonresponsive answers to the court’s questions. Consequently, the court properly concluded that the public interest was served by continuing the trial without Sterling. The Court also rejected a challenge to the admission under Fed. R. Evid. 404(b) of the defendants’ prior bank robbery conviction. Although the prior conviction occurred 15 years before the bank robbery at issue, both defendants were incarcerated until approximately seven years before the robbery at issue. The prior robbery was strong circumstantial evidence that one robber would know that another robber would use a gun in the robbery.

Garza-Mendez: Not bound by state court "clarification"

In U.S. v. Garza-Mendez, No. 12-13643 (Nov. 15, 2013), the Court (2-1) affirmed the imposition of an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C), finding that Garza-Mendez’ prior Georgia conviction for family-violence battery qualified as an “aggravated felony.” The Gwinnett County, Georgia 2007 judgment for Garza-Mendez’ family-violence battery stated that the was sentenced to 12 months of “confinement in the Gwinnett County Comprehensive Correctional Complex.” In 2012, Garza-Mendez obtained a “clarification” from another Gwinnett County judge stating that this was for 12 months of probation, not twelve months of incarceration. Under § 2L1.12(b)(1), a prior conviction counts as an aggravated felony if the defendant was sentenced to 12 months or more of incarceration. The Court held that it was not bound by the “clarification,” but by the original judgment which “could not be any clearer” that Garza-Mendez was sentenced to 12 months of “confinement.” The Court found no abuse of discretion in the district court’s declining to accord a downward departure or variance based on cultural assimilation, citing the district court’s finding that Garza-Mendez had a history of serious offenses, and that cultural assimilation refers to aliens who have “lived lawfully,” not to those who “haven’t been be able to do that.” Finally, the Court affirmed the district court’s requirement that Garza-Mendez report from Mexico to his probation officer during his three-year term of supervised release, after deportation. The Court cited the district court’s finding that extraterritorial reporting was appropriate in light of Garza-Mendez prior illegal re-entry.

Childers: Evidentiary rule subsumed Confrontation Clause

In Childers v. Floyd, No. 08-15590 (Nov. 14, 2013) (en banc) (per curiam), the Court, on remand from the Supreme Court for further consideration in light of Johnson v. Williams, held that, even though a prior Florida state court appellate decision had not expressly addressed Childers’s claim that limitations on cross-examination of a state witness violated his Confrontation Clause rights, Childers had not rebutted the presumption that the state appellate court adjudicated Childers’s Confrontation Clause claim on the merits. The Court noted that although the state appellate court decision “analyzed Childers’s claim under only the Florida rules of evidence, the underpinnings of these rules fit hand in glove with the rights guaranteed under the Confrontation Clause.” The underpinnings were the same because the Florida rule of evidence “gave Childers the same right of confrontation he enjoyed under the Confrontation Clause – the right to expose a witness’s motivation in testifying.” In limiting cross-examination, the trial judge balanced this right against the “danger of unfair prejudice” – a limitation which the Confrontation Clause also recognizes. [Dissenting, Judge Wilson stated that Florida’s evidentiary rule is less protective of the right of cross-examination than the Confrontation Clause].

Siler: Forcible Assault + Dangerous Weapon = 20 years

In U.S. v. Siler, No. 12-14211 (Nov. 13, 2013), the Court affirmed a conviction for assaulting a corrections officer with a deadly or dangerous weapon, in violation of 18 U.S.C. § 111(b), and a 20-year sentence for this offense. The statute at issue, § 111(a) and (b), establishes three levels of punishment: a maximum of one year for an offense involving only simply assault, a maximum of 8 years when the acts involve physical contact with the victim, and a maximum of twenty years when the offender uses a deadly or dangerous weapon or inflicts bodily injury. Siler placed a homemade rope around a corrections officer’s neck and forcibly choked him. He argued that he only qualified for a maximum of one year under the statute. Rejecting this argument, the Court interpreted § 111 to subject a person to the 20-year maximum when a person commits the acts set forth in subsection (a) of the statute, e.g., a forcible assault, and used a deadly or dangerous weapon during that assault. Because the jury so found, the Court affirmed the conviction and the 20-year sentence.

Robertson: Affirming murder convictions of white supremacist

In U.S. v. Robertson, No. 12-10046 (Nov. 12, 2013), the Court affirmed convictions for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Robertson was convicted of murdering homeless persons in order to improve his standing in the Tampa, Florida, Blood and Honour white supremacist group The Court affirmed the district court’s factual finding that there was no immunity deal that would have foreclosed the government from prosecuting Robertson for the murders charged in the indictment. The Court also affirmed the district court’s ruling that sustained three government Batson challenges to Robertson’s motions to peremptorily strike three black venire members. The Court did not agree that it could affirm the district court’s ruling as to Robertson striking of the first black venire member based on his subsequent attempt to strike two more blacks venire members. But the Court found that the district court properly relied on the fact that Robertson was a white defendant striking black venire persons in a trial involving a violent crime against a black victim, and that there were only three black venire members. The Court also noted that Robertson’s justification that the black venire person had ties to law enforcement was contradicted by his decision not to strike several other jurors who had law enforcement connections. Finally, the Court rejected the challenge to the sufficiency of the evidence of a racketeering motive, pointing out that Robertson and others “got tattoos commemorating their participation in the killings.”

Owens: Burden shifting instruction harmless

In Owens v. McLauglin, No. 12-12590 (Oct. 24, 2013), the Court affirmed the denial of habeas relief to a Georgia inmate convicted of a 1981 murder. The Court agreed with the petitioner that the Georgia trial court impermissibly shifted the burden of proof on the issue venue – under Georgia law, an essential element of the offense – when the jury was instructed that it “shall” consider the murder to have occurred in the place where the body was found. But the Court found the burden-shifting error harmless, in light of the overwhelming evidence regarding the place where the murder actually occurred. The Court also rejected the argument that Owens’ due process rights were violated because the state waited 25 years before ruling on his motion for a new trial. “The Supreme Court has never held that there is a constitutional right to a speedy direct appeal in a state criminal case.”

Elliot: Alabama Juvenile Adjudication counts as prior conviction

In U.S. v. Elliot, No. 12-10553 (Oct. 18, 2013), the Court rejected a challenge to an eyewitness identification and affirmed the conviction of a defendant for robbery and brandishing a firearm during and in relation to a crime of violence. The Court also rejected the argument that the district court erred by considering a prior Alabama youthful offender adjudication as a prior felony conviction for purposes of qualifying the defendant under the Guidelines as a “career offender.” The defendant claimed that a photo lineup from which an eyewitness identified him was unduly suggestive because the identification was tainted by her observation of photos of him on the internet and printed flyers. Rejecting this argument, the Court pointed out that the Constitution only prohibits identifications tainted by suggestive circumstances only when law enforcement activity is involved. Here, the witness’s observation of a surveillance videotape of the robbery prior to the lineup was not the result of police misconduct, and police officers were not involved in her independent viewing of photos on the internet. Turning to Elliot’s prior Alabama youthful offender adjudication, the Court recognized that it would not count as a conviction under Alabama law. However, federal law, not state law, determined whether a prior adjudication counted as a conviction for Guideline “career offender” purposes. The Court noted that, under its precedent, a plea of nolo contendere with adjudication withheld is a conviction for career offender purposes, and reasoned that a youthful offender adjudication “must also be considered” a conviction.

Puiatti: Counsel not ineffective for missing red flags of child abuse

In Puiatti v. Sec., Fla. Dep’t of Corrections, No. 12-15581 (Oct. 15, 2013), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1983 murder. The Court rejected the argument that defense counsel was ineffective at the penalty phase of the trial for ignoring “red flags” of child abuse. The Court noted that Puiatti’s attorney did not receive any document that suggested that Puiatti was abused as a child. Moreover, counsel asked questions about Puiatti’s background and childhood but received misleading answers. In addition, counsel could not be faulted for failing to link Puiatti’s history of drug abuse with an otherwise-undisclosed history of child abuse. Further, the Court found that even if counsel had been ineffective, this did not affect Puiatti’s substantial rights. “Although Puiatti’s childhood was far from ideal, the record does not establish that the jury or the state trial court here would have necessarily found it a mitigating factor or a strong one at that.” In addition, had Puiatti been portrayed as a sympathetic victim of his parents’ abuse, this would have invited the State to put on a rebuttal case showing that the murder was consistent with a pattern of antisocial behavior.

Castro: Equally Plausible that district court comment did not affect plea

In U.S. v. Castro, No. 12-12927 (Sept. 26, 2013), the Court affirmed Castro’s convictions, in light of the recent holding in U.S. v. Davila, 133 S.Ct. 2139 (2013) that judicial participation in plea discussions does not result in automatic vacatur of the plea, but instead requires consideration of whether, but for the district court’s comment, the defendant would have gone to trial. During the plea colloquy, in response to the defendant’s statement that no longer wanted to plead guilty, the district court advised the defendant of adverse consequences of renouncing his plea agreement. The Court held that Castro failed to explain how the comment affected his decision. The Court noted when Castro decided to change his plea to guilty, he signed another copy of his plea agreement and stated that he had not been pressured to plead guilty. Although it was plausible that Castro decided to plea guilty because of the comment of the district court, it was “equally plausible” that he pled guilty to shorten the duration of his inevitable sentence.

Muhammad: Confrontation Clause does not apply at capital sentencings

In Muhammad v. Fla. Sec. Dep’t of Corrections, No 12-16243 (Sept. 23, 2013) (2-1) (Wilson, J., dissenting), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for a 1974 murder. The Court held that Muhammad’s Confrontation Clause rights were not violated during the penalty phase of his case, a resentencing hearing at which a witness testified about the testimony presented at the earlier guilt phase of the trial. After canvassing Supreme Court and Eleventh Circuit caselaw, the Court found that the Confrontation Clause does not bar the admission of hearsay testimony at capital sentencing hearings. The Court also rejected the argument that the application of a “cold, calculated, and premeditated” statutory aggravating factor to his case violated the Ex Post Facto Clause, because that factor was not enacted until after he committed his murders. The Florida Supreme Court concluded that this aggravator added nothing new to the elements of the crimes but rather adds limitations which inure to the benefit of the defendant. The Court found that this application of the Ex Post Facto Clause was not unreasonable under clearly established law.

Howell: Change in interpretation of limitations not extraordinary

In Howell v. Sec., Fla. Dep’t of Corrections, No. 13-10766 (Sept. 13, 2013) the Court affirmed the denial of habeas relief to Florida inmate sentenced to death for a 1992 murder, finding the petition to be time-barred. Howell claimed that a Supreme Court decision that altered the interpretation of the statute of limitations for a petition for a writ of habeas corpus was an “extraordinary circumstance” that warranted relief from the denial of a habeas petition under Federal Rule of Civil Procedure 60(b). Rejecting this argument, the Court held that under Gonzalez v. Crosby, this did not qualify as an “extraordinary circumstance.”

Diveroli: District Court lacks jurisdiction over motion to dismiss indictment once notice of appeal is filed

In U.S. v. Diveroli, No. 13-10248 (Sept. 10, 2013), the Court held that, although Federal Rule of Criminal Procedure 12(b)(3)(B) provides that a defendant may "at any time while the case is pending" file a motion claiming that the indictment fails to invoke the court's jurisdiction or to state an offense, once a notice of appeal has been filed the district court does not have jurisdiction to entertain such a motion. The Court invoked the general rule against "dual jurisdiction," and noted that allowing a district court to rule on whether an indictment stated an offense while an appeal was pending "would wreak havoc": a successful appeal would render the motion moot, and a successful motion in the district court would moot the appeal -- it might even moot the decision of the appellate court, a result the Court held it was not required to "countenance."

Edwards: Restitution affirmed in part, reversed in part

In U.S. v. Edwards, No. 11-15953 (Sept. 6, 2013), the Court affirmed in part and reversed in part the restitution ordered to be paid by a defendant convicted of fraudulently soliciting funds from investors by promising astronomical returns and the using the funds for extravagant personal expenses. The Court rejected the argument that the district court erred by failing to take account of Edwards’ financial resources, pointing out that under the Mandatory Victims Recovery Act (MVRA) the district court is require to grant the full amount of restitution. The Court rejected the argument that he should not have been required to pay restitution for a separate real estate investment transaction unrelated to the scheme charged in the indictment. The Court noted that when the crime of conviction involves a “scheme, conspiracy, or pattern of criminal activity as an element of the offense, the court may order restitution for acts of related conduct for which the defendant was not convicted.” Here, the district court could conclude that the real estate transaction was a “related scheme,” because “the schemes involved the same modus operandi and participants. The Court also rejected the argument that restitution should not have been ordered restitution to victims in counts that were dismissed at trial. The Court noted, again, that the lack of a conviction does not preclude restitution. Because the record showed that victims of two dismissed counts were harmed by Edwards, the Court affirmed the restitution as to these two. Finally, the Court agreed that there was insufficient evidence to support restitution for four victims. These alleged victims were not mentioned in the Presentence Report, and the government never mentioned them to Edwards. As a result of these procedural mistakes, Edwards first learned of the victims when the district court entered a restitution order. Because the government admitted on appeal that there was no evidence to support restitution for these victims, the Court found that the district court clearly erred in awarding restitution to these victims. Using its broad discretion on appeal to fashion an appropriate remedy, and noting that if it did not remand the individuals would be denied the possibility of restitution through no fault of their own, the Court remanded the case for the district court to hold a hearing on whether these individuals are entitled to restitution.

Bush: Applying Independent Source Doctrine

In U.S. v. Bush, No. 12-12624 (Aug. 27, 2013), the Court affirmed cocaine trafficking convictions, rejecting challenges to the denial of a motion to suppress, and to the giving of an Allen charge. Bush claimed that the search warrant to search his residence was obtained in violation of the Fourth Amendment, because the decision to obtain a warrant was based on evidence obtained as a result of an unlawful dog sniff at the residence, and from information gleaned from a GPS device placed on his vehicle. The Court noted that under the “independent source doctrine,” a warrant can still be valid if supported by sufficient other information, and if the officer would have sought the warrant even without the preceding illegal search. Here, both conditions were satisfied. The police obtained information from a variety of valid sources, including surveillance of the home, and a “trash pull.” Further, the police decision to seek a warrant was not based on the illegally obtained information. Turning to the Allen charge, the Court recognized that this charge was given even though the jury had not stated it was “deadlocked,”at 6:21pm, after four hours of deliberation, and the jury returned a guilty verdict on all counts 47 minutes later. The Court noted that “in hindsight, it might have been better for the district court to let the jury go home and return the next day.” But the Court found that it had previously upheld Allen charges given in “more extreme” circumstances, and therefore could not find that the jury here was “coerced.”

In U.S. v. McQueen, No. 12-10840 (Aug. 22, 2013), the Court affirmed convictions, under 18 U.S.C. § 241, of Florida corrections officers for depriving several inmates of their right to be free of cruel and unusual punishment, and obstruction of a government investigation, in violation of 18 U.S.C. § 1519. On a government cross-appeal, the Court vacated the sentences as substantively unreasonable. Using a broomstick, the defendants struck inmates, inflicting serious, lasting injuries. The Court rejected the argument that there was insufficient evidence that the defendants, State employees, intended to impede a federal investigation when they falsified a document regarding the cause of inmate injuries that caused them to be taken to the medical station. The Court noted that the federal nature of the investigation, under the statute, is merely a jurisdictional matter, as to which the defendant need have no mens rea. The Court also rejected the argument that there was no evidence of “conspiracy.” The Court found that the defendants “joined together to use force and violence against the inmate, not in order to maintain discipline, but as way of punishing them.” The defendants “pummeled various prisoners in tandem.” Turning to the government’s cross-appeal, the Court found the sentences unreasonable. The Guideline ranges were 151 months for one defendant, and 15 months for the other. The district court imposed sentences of 12 months, and one-month, respectively. Noting that the district court “offered no reasoned justification other than [an accomplice who pled guilty] was getting a lower sentence,” the Court found that this “alone cannot account for dramatic variances.” The Court pointed to other cases in which similarly-situated corrections officers received higher sentences, and concluded that the district court “helped created the very unwarranted disparities it sought to avoid.” The Court noted that it did not intimate that no variance was justified on remand. It vacated the sentences for being unreasonable.

Madden: Constructive Amendment subject to Plain Error Review

In U.S. v. Madden, No. 11-14302 (Aug. 16, 2013), the Court reversed a conviction, because the district court constructively amended the indictment. The district court instructed the jury that it could convict a defendant for of violating 18 U.S.C. § 924(c) by carrying a firearm “during and in relation to a drug trafficking offense.” But the indictment charged him with possessing a firearm “in furtherance of” a drug trafficking crime. Because there are situations where a firearm possession would be “during and in relation to” drug trafficking without “furthering or advancing” that activity, the district court “broadened the possible bases for conviction beyond what was specified in the superseding indictment.” Resolving an intra-Circuit split, the Court held that a constructive amendment does not result in automatic reversal, but is subject to review (when, as here, unobjected to) for “plain error.” The Court held that the error was plain, and prejudiced Madden, because he may have been convicted of a charge not in the indictment. The Court found it “self-evident” that this error seriously affects the fairness, integrity, and public reputation of judicial proceedings.

Yates: Affirming Conviction for Disposing of Undersized Fish

In U.S. v. Yates, No. 11-16093 (August 16, 2013), the Court affirmed the convictions of a commercial fisherman for disposing of and concealing undersized fish to prevent the government from taking lawful custody of them. The Court rejected the argument that there was insufficient evidence to show that the fish were undersized. The Court also rejected the argument that a fish is not a “tangible object” for purposes of the statute. Finally, the Court found no abuse of discretion in the district court’s refusal to allow Yates to call the government’s expert as a witness, pointing out that Yates failed to give pre-trial notice of his intent to call this witness at trial, as required by Fed. R. Crim. P. 16(b)(1)(C).

Spencer: 2255 relief for career offender based on Begay retroactivity

In Spencer v. U.S., No. 10-10676 (Aug. 15, 2013), the Court held that a defendant who unsuccessfully challenged his “career offender” status at both his sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court (Begay v. U.S.) validates his argument and applies retroactively. The Court found that even though the Guidelines (including the career offender designation) are now advisory, they remain “the heart of the substantive law of a criminal procedural rule.” Consequently, an erroneous application of the career offender Guideline can “amount to a fundamental defect that inherently creates a complete miscarriage of justice,” and therefore can be the basis for § 2255 relief. Noting that the career offender Guideline follows from Congress express direction, the Court noted that its punishment is severe and it is not a “vanilla-flavored application” of Sentencing Commission policy. One of Spencer’s prior convictions was for sexual intercourse inflicting “physical or mental injury to a child,” in violation of Fla. Stat. § 827.03(1). The Court found that mental injury was not physical injury. Moreover, the statute was a strict liability statute, because consent of a minor victim to sexual intercourse was not a defense, and the defendant did not need to know his victim was a minor. The more recent Sykes decision did not apply because the offense was a strict liability crime. Consequently, under Begay, the inquiry was whether the Florida sex offense involved purposeful, violent and aggressive conduct similar in kind to burglary, arson, extortion, and use of explosives. The Court that held that it did not. The Court held that it was not bound by its prior holding against Spencer on this issue, because it was decided before Begay.

Curbelo: Translations did not violate Confrontation Clause

In U.S. v. Curbelo, No. 10-14665 (Aug. 9, 2013), the Court affirmed convictions for manufacturing and possessing large quantities of marihuana with intent to distribute. The Court held that Curbelo waived his Fourth Amendment challenge, based on U.S. v. Jones (2012), to the police’s use of a GPS device on his car, because he failed to raise this suppression issue before trial, as required by Fed. R. Crim. P. 12(b). This waiver applies even to “claims based on a new ruling from the Supreme Court.” Noting that, post-Alleyne, a challenge to the sufficiency of the evidence supporting the quantity of marihuana proved will no longer be reviewed for “clear error” by a sentencing court, but for whether a reasonable jury could find it beyond a reasonable doubt (drawing all inferences in favor of the verdict), the Court rejected the argument that the evidence was insufficient to prove that the defendant conspired to possess 1,000 or more marihuana plants. The jury heard testimony that the grow houses produced at least 1,190 plants. The Court also rejected a challenge to the jury verdict form, finding any omission “irrelevant.” The Court also rejected a Confrontation Clause challenge to the admission of English translations of the transcripts of taped conversations in Spanish. A cooperating witness – not the translator – testified that he reviewed the transcripts and that they accurately translated the conversations. The Court determined that the Confrontation Clause issue arose not out of the translations themselves, but out of the representation that the translations were correct. Here, the person who made that representation was not the translator, but a witness, who was subject to cross-examination, and who himself compared the recordings and transcripts. Consequently, no Confrontation Clause violation occurred. The Court distinguished other cases involving the certification by a person who had no first-hand knowledge of the facts, and who testified about others’ assessment of the facts. The Court rejected the argument that a jury verdict was required on the forfeiture count, pointing out that Fed. R. Crim. P. 32 only requires a jury verdict on the forfeiture of “specific property,” but the judge can decide forfeiture of “money judgments” – as here.

Fries: Insufficient evidence to support 922(a)(5) conviction

In U.S. v. Fries, No. 11-15724 (Aug. 6, 2013), the Court found insufficient evidence to support a conviction under 18 U.S.C. § 922(a)(5) for transferring a firearm to an out-of-state resident without being a licensed firearms dealer, and reversed the conviction. Because the defendant neglected to move for a judgment of acquittal in the trial court, the Court did not review the sufficiency issue de novo, but only to determine whether the record was “devoid of evidence” of an essential element of the crime. An essential element of § 922(a)(5) is that the defendant sold a firearm to an unlicensed person. The government conceded that there was no direct evidence of the licensure status of the person to whom Fries sold a firearm. The Court rejected the government’s argument that Fries knew he was “breaking the law,” noting that this subjective belief did not bear upon the objective state of affairs at the time of the sale. The Court also rejected the government’s argument that it could have proved that the buyer was unlicensed, pointing out that Due Process requires convictions to be based on what the government proved, not what it could have proved.

Lee: No habeas relief for Alabama death row inmate

In Lee v. Comm., Ala. Dep’t of Corrections, No. 12-14421 (Aug. 1, 2013), in a 128-page opinion, the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for two 1998 murders. The Court rejected Lee’s ineffective assistance of counsel claim, finding no prejudice could have resulted from deficient performance. The Court found that Lee presented no significantly new mitigating evidence, including evidence regarding Lee’s diminished mental capacity, and noted the “horrific and heinous facts of his two premeditated and cold-blooded murders.” The Court also rejected the challenge to the state trial court’s decision to override the jury’s recommendation of life without parole, and to impose a death sentence. The Court held that Ring v. Arizona “left open” whether such judicial override was constitutionally valid; Ring merely held that the Sixth Amendment requires the jury to make the finding of an aggravating circumstance that is necessary to impose the death penalty - a finding the jury made here. Finally, the Court rejected a Batson claim of discrimination during jury selection (the State used all of its 21 peremptory strikes and 17 of its 18 cause strike on black venire members). Applying AEDPA deference to the Alabama court’s “plain error” review of this claim, and rejecting Lee’s reliance on the too “summary” nature of the adjudication of this claim in the Alabama courts, the Court found no Batson grounds for habeas relief. The Court noted that 9 of the 12 jurors who ultimately served on the jury were black. The Court found insufficient evidence to support the claim that the local District Attorney’s office historically used race discrimination during jury selection. The Court credited the prosecutor’s race neutral reasons for striking several venire members.

Vernon: Anti-Kickback convictions stand

In U.S. v. Vernon, No. 12-12767 (July 26, 2013), in an 84-page opinion, the Court reversed the district court’s granting of a judgment of acquittal on violation of the Anti-Kickback statute, 42 U.S.C. § 1320a-7b(b), and affirmed convictions of health care fraud and violations of the Anti-Kickback statute. The scheme involved an Alabama specialty pharmacy’s payment of kick-backs for referrals of hemophilia Medicaid patients to receive highly profitable hemophilia “factor medication.” The Anti-Kickback statute specifically prohibits such payments. The Court rejected the argument that the Anti-Kickback statute was limited to improper doctor referrals, finding that it encompassed persons who received kickbacks even though they themselves could not prescribe medicine. The Court rejected the argument that the evidence did not such that the defendants acted “willfully,” pointing out that their own corporate compliance plan advised them to comply with federal anti-kickback laws. The Court rejected a duplicitous indictment argument, pointing out that the district court found it was untimely raised in the district court, and the argument was therefore waived. The Court also rejected challenges to jury instructions, finding, on “plain error” review, that the indictment and the trial evidence made a incorrect jury verdict “highly unlikely.” Again applying “plain error” review, the Court rejected a constructive amendment argument, finding that if anything the jury instructions “narrowed” the range of conduct that could be the basis for conviction. The Court also rejected a “good faith reliance on counsel’s advice” defense, finding that the jury could have relied on the fact that a defendant continued to pay kickbacks even after an attorney specialized in health care regulation advised him that he could not fit his payment relationship with a person referring patients under a kickback “safe harbor.” The Court also rejected a defendant’s challenge to a conspiracy conviction, pointing out that he joined the conspiracy to buy himself a 2008 Chevrolet Silverado 1500 pickup truck.

Charles: Confrontation Clause does not permit translator's out of court statements

In U.S. v. Charles, No. 12-14080 (July 25, 2013), the Court held that the admission of third-party testimony as to the out-of-court statements made by an interpreter who translated Charles’ creole language statements into English during the Customs and Border Protection’s interrogation of Charles violated the Confrontation Clause. However, because the issue was raised for the first time on appeal, and there was no binding Circuit precedent on point, the error was not “plain” – and the Court affirmed the conviction.




The Court noted that under Crawford v. Washington and its progeny, the Confrontation Clause excludes out-of court “testimonial” statements. Here, the translator’s statements were testimonial – the government sought admission of statements made during interrogation, for the purpose of proving their truth. The Court found that its precedent in United States v. Alvarez had not addressed the Confrontation Clause admissibility of translator statements, and its hearsay determination was therefore not dispositive.



[Marcus, J., specially concurring, would not have reached the merits of the Confrontation Clause issue.]

Castillo: No prejudice in juror missing a day of trial

In Castillo v. Florida Sec. of DOC, No. 12-13053 (July 22, 2013), the Court reversed the grant of habeas relief to a Florida inmate sentenced to 15 years imprisonment for robbery.




At trial, viewing the unclear facts in the light most favorable to the defendant, her defense counsel failed to object when the jury retired to deliberate even though one of the jurors had missed an entire day of testimony.



The district court had analogized the circumstances to the complete deprivation of the assistance of counsel, a per se prejudicial error under U.S. v. Cronic, 466 U.S. 648 (1984). Rejecting this reasoning, the Court noted that Cronic was limited to the “complete” denial of counsel. Here, Castillo’s counsel actively participated in the trial, giving an opening statement, cross-examining witnesses, and giving a closing argument urging acquittal. Consequently, assuming counsel’s failure to object was ineffective assistance, Castillo was still required to show “prejudice” under Strickland v. Washington. Castillo failed to show prejudice, because all of the witnesses who testified on the day the juror missed trial were prosecution witnesses, and all of the testimony they gave was incriminating (and Castillo did not testify in her defense).

Brown: Conflict-Free counsel not basis for 2255 relief

In Brown v. U.S., No. 09-10142 (July 10, 2013), the Court rejected a federal inmate’s § 2255 challenge to his death sentence for a 2002 murder of a federal employee.




The Court rejected the claim that trial counsel failed to adequately present mitigating evidence, finding that the topics cited in Brown’s § 2255 motion were already addressed at the original penalty phase. “Even if we could say that some of the information about Brown’s childhood drug and alcohol abuse was new and relevant mitigating evidence, we cannot fairly conclude on this record that there is a reasonable probability the jury’s balancing of the aggravating and mitigating factors would have been affected. Brown committed a brutal, unnecessary crime, his criminal record was lengthy, and the victim was beloved.”



The Court rejected the argument that one potential juror had not been asked follow-up questions about her views on the death penalty, finding that Brown did not previously raise the issue on direct appeal, having only mentioned in footnotes in his briefs unaccompanied by any claim of error. Appellate counsel were not ineffective in failing to raise this issue, because it had “so little merit.”



Finally, the Court rejected the argument that Brown should have been entitled to new, conflict-free habeas counsel, after his counsel had been reprimanded by the district court for contempt of court for having contacted jurors at the original trial without court permission. Brown alleged that his new attorney would have argued that the district court consider a juror affidavit. But the Court pointed out that this affidavit was not competent evidence, so “it would have been futile for the district court to have appointed new counsel in this case to further press the juror’s affidavit.”

Scrushy: Recusal motion correctly denied

In U.S. v. Scrushy, No. 12-10694 (July 15, 2013), the Court affirmed the denial of a motion to recuse a district judge from a case, and the denial of a motion for a new trial.




The motions arose out of evidence that jurors in the Scrushy trial had engaged in improper deliberations. During the investigation of this matter, the district judge held an ex parte meeting with U.S. Marshals who told him some of the juror evidence was forged.



The Court rejected the argument that the district judge must be recused because of this ex parte meeting, noting that the judge had resolved the matter in Scrushy’s favor. A disinterested observer would therefore not doubt the judge’s impartiality.



Turning to the motion for new trial based on newly discovered evidence, the Court found that one ground for this motion – selective prosecution – was not a proper ground: the decision to prosecute has no bearing on the integrity of the trial or verdict. In addition, selective prosecution challenges are waived if not raised before trial, and Scrushy offered only “feeble” reasons for having delayed bringing this motion until after trial.



The Court also found no merit in the claim that Scrushy was deprived of a “disinterested” prosecutor because a U.S. Attorney continued being involved after recusing herself from the case. The Court found that the U.S. Attorney’s “limited involvement” did not deprive Scrushy of a disinterested prosecutor.



Finally, the Court rejected as not “material” evidence that jurors had a romantic interest in the FBI case agent. “The assertion that a mere expression of attraction would infect the jury’s decision with bias strains credulity.”

Burns: No error in failing to give "no adverse inference from silence" instruction

In Burns v. Sec., Fla. Dep’t of Corrections, No. 11-14148 (July 8, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate sentenced to death for a 1997 murder. The Court rejected the argument that it was “structural error” for the Florida sentencing court to decline to instruct the jury, at the penalty phase, that it should draw no adverse inference from the defendant’s failure to testify. The Court pointed out that the Supreme Court has yet to reach the issue whether the failure to give a “no adverse instruction” is structural error. The Court also rejected the argument that the failure to give a “no adverse inference” instruction was not harmless. The Court pointed out that the state never commented on Burns’ failure to testify. Further, the prosecutor’s questions about the defendant’s lack of remorse were legitimate responses to the defendant’s evidence which attempted to show he was remorseful.

Victor: Affirming Physical Restraint Enhancement

In U.S. v. Victor, No. 12-12809 (June 27, 2013), the Court affirmed a 121-month sentence imposed for bank robbery, brandishing a firearm, in violation of 18 U.S.C. §§ 2113(a) and 924(c)(1)(A)(ii).




The Court rejected a challenge to the imposition of a two-level Guideline “physical-restraint” sentence enhancement. The Court found that Victor, by threatening a bank lobby employee with what the employee believed to be a gun to prevent her from escaping, “physically restrained her within the Guidelines’ meaning.”



The Court also rejected a substantive reasonableness challenge to the sentence. The sentence was within the Guidelines range, and the district court considered the § 3553(a) factors.

Bane: Fines Subject to Apprendi

In U.S. v. Bane, No. 11-14158 (June 28, 2013), the Court vacated the restitution and fine portions of a sentence, but otherwise affirmed the term of incarceration imposed on a defendant convicted of health care fraud and of making false claims against the government.




The Court affirmed the imposition of a 20-level enhancement for an offense involving a loss in excess of $7 million, rejecting Bane’s argument that the loss amount should not include the value of oxygen provided that was medically necessary for patients. The Court noted that a Guideline Application Note provides that no credit for value received should be given in cases in which “regulatory approval by a government agency” was obtained by fraud. The Court applied this rule, because Bane obtained Medicare’s approval to pay for oxygen by fraudulently representing that the requisite lab test had been performed. [Dissenting from this portion of the decision, Judge Jordan reasoned that “regulatory approval” referred to an FDA-type approval of the introduction of a drug into the market.]



For the same reason, the Court rejected Bane’s challenge to the finding that his crime involved 270 victims.



The Court also affirmed the imposition of a “sophisticated-means” enhancement, pointing out that Bane recruited oximetry labs to participate in the scheme, installed software, and falsified test results.



The Court reversed the restitution order, pointing out that restitution should not result in a “windfall” to the victims. Here, 80 to 90 percent of the services Bane provided were medically necessary, and the victims paid no more for the services than they otherwise would have. On remand, Bane would bear the burden of proving the amount of the offset to which he was entitled.

Turning to the fine, the Court agreed with Bane that the $3 million fine violated Apprendi because exceeded the $ 2.5 million maximum amount authorized by the jury’s convictions – the fine was based on the loss amount under an alternative calculation by the district court, not submitted to the jury. Reviewing the issue for plain error, and applying a recent Supreme Court case, the Court held that fines are subject to Apprendi. The Court therefore found that the $3 million was “plain error.”

Rojas: Marriage Fraud Prosecution Barred by Statute of Limitations

In U.S. v. Rojas, No. 12-15364 (June 20, 2013), the Court held that a marriage fraud prosecution was barred by the five-year statute of limitation, because the indictment was filed more than five years after the date the couple married.




The government claimed that the crime was not complete until investigators interviewed the couple and “became aware of the fraud” and of the marriage’s unlawful purpose, or until the defendants took the additional step of filing for immigration benefits. Rejecting these arguments, the Court held that marriage fraud is not a “continuing offense,” but is complete once the couple “enters into” the marriage.

Valerio: Stop and frisk "well outside" Terry

In U.S. v. Valerio, No. 12-12235 (June 20, 2013), the Court held that a seizure of marihuana plants in a Deerfield Beach, Fla., warehouse was not authorized by the Fourth Amendment, and that this evidence therefore should have been suppressed.




Surveillance of Valerio, including a K-9 sniff outside a unit he rented at a warehouse, failed to find evidence that, as police suspected, he was involved in a marihuana grow operation. One week after this unsuccessful surveillance ended, police went to Valerio’s home, waited across the street until he emerged and entered his truck. At that point, the officers blocked his exit, approached him with gun drawn and pointed in his direction, ordering him out of his truck. Police conducted a full-body pat-down search of Valerio. Police then questioned Valerio, who eventually admitted to growing marihuana at the warehouse.



The Court noted that the constitutionality of Valerio’s seizure in his driveway turned on whether it was a valid warrantless “stop-and-frisk” under Terry v. Ohio. The Court noted that “[t]he investigative stop contemplated by Terry is not a policing tool that can be constitutionally deployed in any context in which law enforcement has reasonable suspicion that an individual is involved in criminal activity. Rather, it may be used only within the ‘rubric of police conduct’ addressed in Terry, for which the timing and circumstances surrounding the investigative stop matter.”



Here, the seizure was “well outside” Terry. It was “not responsive to the development of suspicion within a dynamic or urgent law enforcement environment. Rather, the officers went to Mr. Valerio’s home nearly a week after they had last observed him do anything.” In view of the lack of exigency, the officers should have acted in conformity with the Fourth Amendment. The Court vacated the denial of the motion to suppress and remanded the case to the district court, pointing out that evidence obtained as a result of an illegal seizure “is suppressible as fruit of the poisonous tree.”

Pacchioli: Jury read-back not needed when it would not 'clearly benefit" defendant

In U.S. v. Pacchioli, No. 12-12913 (June 19, 2013), the Court affirmed convictions of contractors convicted of paying kickbacks to hospital facility managers to obtain contracts with South Florida hospitals, in violation of 18 U.S.C. § 666(a)(2).




The Court rejected one defendant’s claim that the statute of limitations barred his conviction because he agreed to give a bribe more than five years before the filing of the indictment. The Court noted that the statute of limitations begins to run when the crime is “complete.” The Court pointed out that the bribery statute is phrased in the alternative, criminalizing the agreement to give a bribe, offering to give a bribe – or giving the bribe. Here, the government alleged, and the jury found, the giving of the bribe – the installation of free generators at the hospital facility manager’s home – within the five-year limitations period.



The Court rejected a challenge to the sufficiency of the evidence, pointing the “remarkable coincidence” that the defendant gave free goods and services to the three hospital facility managers who were awarding him contracts.



The Court also rejected the argument that the district court abused its discretion when it failed to allow defense cross-examination of a government witness regarding a statement that the witness’s lawyer had made earlier about the witness’s mild cognitive impairment. The Court noted that the witness was subject to extensive cross-examination, which gave the jury the opportunity to evaluate the witness. Thus, an error in excluding the testimony was “harmless.” The Court noted that the lawyer’s statement was not admissible under Fed. R. Evid. 801(d)(2), because this rule applies only to the agents of party opponents, and the government’s witness was not a party opponent.



The Court rejected the argument that the district court abused its discretion when, in response to a request from the jury, it declined to read back requested trial testimony. The Court noted that the requested testimony “did not clearly benefit” the defendant’s case, and the defendant therefore could not show prejudice.



Finally, the Court rejected one defendant’s claim that the indictment was deficient, noting that it was being raised for the first time on appeal. http://www.ca11.uscourts.gov/opinions/ops/201212913.pdf

Reaves: No prejudice in failing to present voluntary intoxication defense

In Reaves v. Sec., Fla. Dep’t of Corrections, No. 12-11044 (May 30, 2013), the Court reversed the grant of habeas relief to a Florida death row inmate, finding that the district court erred in determining that Reaves suffered “prejudice” as a result of his trial counsel’s failure to present a voluntary intoxication defense.


The Court noted that most of the expert testimony supporting a voluntary intoxication defense would have been inadmissible at Reaves’ retrial. The expert opinions were based not on cocaine use alone, but on years of chronic substance abuse – a factor that would not be relevant under Florida law. In addition, the Court pointed to evidence of premeditation, rejecting the argument that killing a police officer was so clearly ill advised: “people sometimes make bad decisions and do stupid things.”

The Court, however, rejected the State’s attempt to appeal the district court’s grant of an evidentiary hearing regarding ineffectiveness of counsel at the penalty phase. The Court held that this was an interlocutory non-appealable order.

Philidor: IRS verifies identifying information before issuing refunds

In U.S. v. Philidor, No. 13-13679 (May 29, 2013), the Court rejected the argument that the government failed to prove that the fraudulent tax return filing offense involved more than 250 victims and therefore qualified for a sentence enhancement under USSG § 2B1.1(b)(2)(C).




The Court noted that the defendants’ bank statements listed over 250 Social Security numbers of recipients of tax refunds. The district court could infer “based on common sense and ordinary human experience” that the Internal Revenue Service verifies identifying information, like Social Security numbers, before issuing a tax refund. Consequently, the refunds were associated with real people. In addition, the district court did not need to find that the persons were living, because the Guideline does not distinguish between living and deceased persons.

Whatley: In court identifications not subject to prescreening

In U.S. v. Whatley, No. 11-14151 (June 3, 2013), the Court affirmed bank robbery convictions and reversed an “abduction” sentence enhancement.

The Court rejected the argument that the admission of in-court identifications of Whatley by bank employees violated Due Process. The Court found that the recent decision in Perry v. New Hampshire, 132 S.Ct. 716 (2012), held that judicial pre-screening of reliability is not required to address identifications made in suggestive circumstance (for example, as Whatley claimed, in-court identifications made years after the incidents), unless the identifications were the result of improper police conduct. Here, the identifications were made in court, where Whatley was able to confront the eyewitnesses and highlight the frailties of their identifications.

The Court rejected the argument that the district court erroneously admitted under FRE 404(b) evidence that Whatley attempted another bank robbery. The Court found that the “similarities between the charged robberies and the uncharged bank robbery ... marked the crimes as the handiwork of Whatley.” They therefore suggested a modus operandi.

The Court also rejected (2-1, Jordan, J., dissenting) the argument that the district court should have granted a new trial because it was discovered that a newspaper article about one of Whatley’s robberies was considered by the jury during deliberations, as the result of a computer glitch in the scanning of trial exhibits. The district court conducted a thorough examination of each juror, and found that the jurors did not consider the article “until the final hours of their deliberations” – a period during which they remained deadlocked. Finally, the government’s evidence on the one count of conviction decided after the jury saw the document was “overwhelming.”

Turning to sentencing, the Court held that a sentence enhancement for “abduction” pursuant to USSG § 2B3.1(b)(4)(A) was erroneously imposed based on Whatley’s herded the bank employees inside the bank. The Court noted that Whatley never took the employees outside the bank. The Court noted that the dictionary definition of “abduction” refers to “the act of leading someone away,” as in a kidnapping.

Diaz-Calderone: Prior plea colloquy qualifies defendant for "crime of violence"

In U.S. v. Diaz-Calderone, No. 12-12013 (May 23, 2013), the Court affirmed a finding that a defendant’s prior aggravated battery on a pregnant victim, in violation of Fla. Stat. § 784.045(1)(b) was a “crime of violence” for purposes of imposing a 16-level Guideline sentence enhancement on a deported alien who reentered the United States illegally.

The Court acknowledged ambiguity in the Florida statute regarding whether it constituted a “crime of violence,” because this statute encompasses both a mere “touching,” and a striking or the causing of bodily harm.

However, using the modified categorical approach, the district court correctly relied on the defendant’s plea colloquy, and not just the probable cause arrest affidavits (which would not have sufficed to determine whether the prior conviction was a “crime of violence.”).   The tape of the state judge’s acceptance of Diaz-Calderone’s nolo contendere plea indicated that Diaz-Calderone admitted to what the affidavit said he did, namely striking the pregnant victim.  Therefore, the district court correctly concluded that in his case the prior aggravated battery was a crime of violence.

Dupree v. Warden: Recommending Stricter Review of Unobjected to R&R Issue

In Dupree v. Warden, No. 11-12888 (May 7, 2013),


the Court vacated the denial of habeas relief because the district court failed to address all issues raised in a habeas petition, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) (district court must address all issues raised in a habeas petition, regardless of whether relief is granted or denied).

The Court noted, however, that the issue that the district court had failed to address was also not addressed by a Magistrate Judge in his Report and Recommendation, and that the habeas petitioner had failed to object in the district court to the Magistrate Judge’s failure to address this issue. The Court noted that in the Eleventh Circuit, the unobjected-to legal issue is nonetheless reviewed de novo by the Court of Appeals. The Court added a lengthy “recommendation,” urging the full court en banc, or by administrative rule-making, to change its standard of review. The Court noted that in a majority of Circuits a party’s failure to object to a Report and Recommendation results in waiver of that issue, with plain error review only when in the “interests of justice.” The Court advocated adoption of this stricter rule, noting that it prevents “sandbagging” the district court.

Hamilton: Crack Cocaine offender bears burden to show whether cocaine amount makes him eligible for reduction

In U.S. v. Hamilton, No. 12-10899 (April 23, 2013), the Court reversed the denial of a crack cocaine offender’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).


Based on Hamilton’s “relevant conduct” and the “reasonably foreseeable acts of others in furtherance of jointly undertaken criminal activity,” the district court at the initial sentencing held Hamilton accountable for “at least 1.5 kilograms” of crack cocaine. This established a base offense level of 38.

As a result of subsequent retroactive Guideline amendments, in order for a crack cocaine offense to subject a person to level 38, the offense would have to involve 8.4 kilograms of cocaine.

It was unclear whether, after the Guideline amendments, Hamilton was entitled to a Guideline sentence reduction, because an offense involving “at least 1.5 kilograms” of crack cocaine can involve more, or less, than 8.4 kilograms.

The Court therefore instructed the district court on remand to determine whether Hamilton was now accountable for 8.4 kilograms of crack cocaine. The Court instructed the district court not to consider any new evidence, and not to enter any finding inconsistent with an original finding. If the district court could not determine Hamilton’s drug quantity with “sufficient specificity,” the court should not lower the sentence, because Hamilton, as the § 3582(c)(2) movant, bore the burden of showing that he would have received a lower sentence under a lower Guidelines range.

Williams: Nonexistent precedent precludes habeas relief

In Williams v. Warden, No. 11-13306 (Apr. 11, 2013) (2-1), the Court held that the “savings clause” of 28 U.S.C. § 2255 did not authorize Williams to bring a habeas petition under 28 U.S.C. § 2241 challenging whether three violent felony predicate convictions supported his sentence enhancement under the Armed Career Criminal Act (ACCA). The Court reasoned that because Williams could and did raise this issue on direct appeal and in his first § 2255 motion, the savings clause does not apply.

The Court pointed out that § 2255's savings clause provides that once a court has denied a petitioner relief, a habeas remedy is not available unless the remedy was “inadequate or ineffective” to test his claim. This erects a “jurisdictional” barrier against habeas remedies.

The Court noted that the savings clause had to interpreted in a way that did not “swallow up” the limitations on second § 2255 motions. “If possible, we try to avoid interpreting a statute in such a way that any part of it becomes mere surplusage.”

The Court held that for a challenge to a sentence to pass muster under the savings clause, it must be based on a retroactively applicable Supreme Court decision, that overturned circuit precedent that had squarely foreclosed a claim.



Williams could not satisfy this test, because at the time of his initial motion, no Circuit precedent foreclosed his sentencing challenge, which relied on Begay, a Supreme Court decision decided after his appeal and his initial § 2255 motion.



[Dissenting. Judge Martin wrote that “prexistence or nonexistence of circuit precedent has no bearing” on whether a defendant is eligible for habeas relief. Martin reasoned that if Williams was never a career criminal in light of Begay, then his continued incarceration violates due process.]

Hall: Guideline definition of "Crime of Violence" is Binding

In U.S. v. Hall, No. 12-11343 (April 16, 2013), the Court held that Hall’s prior conviction for possession of an unregistered sawed-off shotgun in violation qualified as a "crime of violence" for purposes of the USSG § 2K2.1(a)(4)(A) enhancement. The Court pointed out that the commentary to the Guidelines that defines a "crime of violence" explicitly states that unlawfully possessing a sawed-off rifle is a crime of violence. The Court noted that this Guideline commentary is "binding." Consequently, the Court rejected Hall’s arguments, based on caselaw interpreting a "violent felony" under the Armed Career Criminal Act (ACCA), that possession of a sawed-off shotgun should not qualify as a "crime of violence." These arguments were unavailing in the face of the binding Guideline commentary.

Hinds: Post-FSA Sentencing qualifies for FSA lower minimums

In U.S. v. Hinds, No. 11-16048 (April 9, 2013), the Court held that the Fair Sentencing Act (FSA)’s lower mandatory minimum term applied to a defendant who was resentenced after the FSA took effect. The Court noted that it had not addressed whether the FSA applied to a defendant who was resentenced (as opposed to originally sentenced) post-FSA. Finding "no meaningful difference between an initial sentence and a resentencing post-Act," the Court held that the FSA applied to Hinds, and vacated Hinds’ sentence and remanded for resentencing.

Melson: Habeas Petitioner failed to Establish Reasonable Diligence

In Melson v. Comm’r, Ala. Dep’t of Corrections, No. 11-13512 (April 4, 2013), the Court affirmed the dismissal as time-barred of Melson’s federal habeas petition. The Court found no need to address whether the AEDPA one-year limitations period should equitably tolled based on Melson’s counsel’s failure to timely file a state post-conviction motion, because Melson’s himself repeatedly failed to pursue his federal habeas proceeding with reasonable diligence.

Overstreet: Wife's Murder is valid basis for upward variance to 420 months

In U.S. v. Overstreet, No. 11-16031 (March 28, 2013), the Court affirmed a 420-month sentence imposed on a defendant convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), finding that the variance above the Guideline range of 180-188 months was supported by the district court’s finding, by a preponderance of the evidence, that the defendant murdered his wife.




The Court noted the uncontradicted evidence pointing to Overstreet’s responsibility for his wife’s death. Although the murder was not connected to the offense of conviction, the district court had authority to consider it under its § 3553(a) discretion. In addition, the Court noted Overstreet’s “exceptionally violent and heinous” past criminal history, and that he committed the murder and the unlawful gun possession while on parole.

Coronado-Cura: Simple Vehicle Flight is Aggravated Felony

In U.S. v. Coronado-Cura, No. 12-12344 (March 26, 2013), the Court held that “simple vehicle flight” in violation of Fla. Stat. § 316.1935(2) qualifies as an “aggravated felony” for purposes of an 8-level Guideline sentence enhancement for a defendant convicted of illegally entering the United States.




The Court noted that vehicle flights create a risk of car crashes, and that the Guidelines definition of risk include the risk that force will be used against the person or property of another (regardless of whether that force comes directly from the fleeing offender or the pursuing police officers). The Court also noted its precedent in Petite which had held that simple vehicle flight qualified as a “violent felony” for purposes of the Armed Career Criminal Act.

Cruz: Target Cashier Abused Her Trust

In U.S. v. Cruz, No. 11-12568 (March 26, 2013), the Court, for an offense involving aggravated identity theft, upheld (1) the imposition of a sentence enhancement under U.S.S.G. § 2B1.10(b)(1) for the use of device-making equipment, and (2) a sentence enhancement under § 3B1.3 for abuse-of-trust.

The offense involved the fraudulent use of credit card numbers obtained through a waitress at a restaurant who used a credit card skimmer. Cruz claimed that he should not be subject to the § 2B1.10(b)(1) use-of-device-making-equipment enhancement, because another Guideline provided that this enhancement was inapplicable when a defendant, like Cruz, was already subject to the mandatory term of imprisonment under 18 U.S.C. § 1028A for aggravated identity theft. Rejecting this argument, the Court held that the Guideline only precluded an additional enhancement based on “the transfer, possession, or use of a means of identification,” not based on the use of device-making equipment.


The Court also rejected the argument of a cashier at a Target store that her position as a mere cashier did not create the kind of trust that triggered an “abuse of trust” sentence enhancement. The Court found that the cashier abused the authority of her position at Target to help co-conspirators use credit cards without authorization.

Carillo-Ayala: Firearms sales make drug trafficker safety-valve ineligible

In U.S. v. Carillo-Ayala, No. 11-14473 (March 22, 2013), the Court held that a defendant who sold drugs and firearms was not eligible for a “safety-valve” sentence reduction, because of the “connection” between the firearms and the drugs.




Defendants like Carillo-Avala, who are convicted of trafficking in certain quantities of drugs are subject to statutory mandatory minimum sentences – unless they qualify for the “safety-valve.” Carillo-Avala’s safety-valve eligibility turned on whether there was a “connection” between his drug trafficking offense and his possession of firearms, when his involvement with firearms was limited to his sale of firearms to a drug dealer.



The Court noted that only a “narrow class” of defendants are eligible for the safety-valve. Though rejecting the government’s argument that a “connection” between drugs and firearms existed simply because the firearms were part of the “relevant conduct” for the drug offense, the Court found that a “connection” requires less proof than a showing that firearms were possessed “in furtherance” of a drug offense. The “connection” is established if the defendant possesses a firearm “in close proximity” to drugs, or the firearm “facilitates” the drug offense by “emboldening” the defendant, or instills confidence in others, or helps the defendant avoid detection.



For Carillo-Ayala, the “connection” was established not because the firearms transactions created trust for the drug transactions – “greased” the drug transactions – but because he might have put the money from his firearms transactions to work in his drug enterprise, because the firearms he was selling to a drug dealer would help this drug dealer continue in the drug business and come back to Carillo-Ayala for more drugs, and because of the proximity of the firearms to the drugs. Carillo-Ayala did not bear his burden of showing that the firearms did not facilitate his drug transactions.

Adkins: Habeas relief for Batson violation

In Adkins v. Warden, No. 11-12389 (Feb. 27, 2013) (2-1), the Court granted habeas relief to an Alabama inmate sentenced to death for a 1988 murder, finding that the State exercised peremptory strikes to eliminate potential black jurors in violation of Batson v. Kentucky.




The Court found that the Alabama court failed to consider “all relevant circumstances” in determining whether the exclusion of black jurors resulted from “purposeful discrimination “ The State used peremptory strikes to exclude nine of eleven eligible black jurors. The prosecutor noted the race of every black veniremember, and only black veniremembers, on the jury list the prosecutor relied upon in striking the jury, marking each of them with a “BM” or “BF.” The prosecutor’s reasons for striking jurors were contradicted by the record. An ex parte affidavit prepared by the prosecution was relied on.



Reviewing the State’s use of peremptory challenges de novo, the Court found that the strikes were used in a discriminatory manner. The Court noted that the reasons the prosecutor gave for excluding black jurors were not the basis for excluding similarly-situated white jurors.

Hippolyte: Mandatory minimum Crack Offender Not Eligible for sentence reduction

In U.S. v. Hippolyte, No. 11-15933 (March 14, 2013), the Court held that a crack cocaine offender sentenced in 1996 to a statutory mandatory minimum sentence was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the recent Guideline Amendments.




The Court rejected the argument that the Guidelines’ new definition of the term “applicable guideline range” made Hippolyte eligible for a § 3582(c)(2) reduction, holding that it has “nothing to do with mandatory minimums.”



The Court also noted that the Fair Sentencing Act (FSA) does not apply retroactively to Hippolyte’s 1996 sentence. Hence, any Guideline reduction could not apply to Hippolyte because his sentence was based on an unchanged statutory mandatory minimum.

Nelson: Honest services statute not void-for-vagueness

In U.S. v. Nelson, No. 12-11066 (March 13, 2013) (2-1), the Court rejected a void-for vagueness challenge to the constitutionality of the honest-services mail fraud statute, and affirmed convictions of mail fraud and bribery of a former member of the Board of the Jacksonville, FL Port Authority.




The Court noted that although Nelson was not paid for his work as a JaxPort board member, he was indisputably a “public official.” He agreed to represent the interests of a private firm that had business with JaxPort in exchange for monthly payments routed through a middleman. This was a “classic” bribery and kickback scenario. Nelson could not complain about vagueness.



The Court also rejected Nelson’s challenge to jury instructions, finding that his counsel agreed to the wording of one instruction and therefore waived the issue, and that the other properly directed the jury to look to Nelson’s state of mind.



The Court also rejected the argument that the district erred, under Fed. R. Evid. 403, in admitting testimony that one year prior to the charged bribery, Nelson met with JaxPort’s CFO and asked that a contractor be terminated and noted that a rival contractor was “ready to go.” The Court noted that the evidence corroborated parts of the government’s case.

Kuhlman: Chiropractor's sentence "substantively unreasonable"

In U.S. v. Kuhlman, No. 11-15959 (March 8, 2013), on a government cross-appeal of a sentence, the Court held that a sentence of probation and community service was “substantively unreasonable,” for a chiroptractor convicted of health care fraud involving close to $ 3 million.




. The advisory Guideline range was 57 to 71 months. After Kuhlman made full restitution of the close to $ 3 million he stole, and performed community service, the district court sentenced him to probation for time served. The Court found that this sentence failed to served the need for general deterrence, an important factor because health care “is so rampant that the government lacks the resources to reach it all.” The Court cited three of its precedents – Livesay, Martin and Crisp – which held that sentences for white collar defendants were too lenient and therefore “outside the range of reasonableness.” The Court added: “The Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status.”

Weeks: Judge may find "different occasions" ACCA enhancement

In U.S. v. Weeks, No. 12-11104 (Jan. 31, 2013), the Court affirmed the imposition of a mandatory minimum 180-month sentence under the Armed Career Criminal Act (“ACCA”), rejecting the argument that the sentencing court’s finding that the prior burglary offenses were not “committed on occasions different from one another” violated the Sixth Amendment, because this finding had to be made by a jury. The Court rejected Weeks’ reliance on dicta from Nijhawan v. Holder, 557 U.S. 29 (2009) that, in a criminal prosecution, “circumstance-specific” facts relating to a prior conviction would have to be found by a jury. The Court therefore held that it was bound by its prior holdings that district court may determine the factual nature of prior convictions, so long as they limit themselves to Shepard-approved sources.




Reviewing for “plain error,” the Court also rejected the argument that Weeks might only have been an accomplice for some robberies that others committed. The Court found no evidence in the charging documents that Weeks merely participated as an accomplice, and no Circuit or Supreme Court caselaw indicating that a charging document’s lack of specificity on this point mattered for ACCA classification purposes.

Hoffman: Mandatory Life Sentence Not Plainly Cruel and Unusual

In U.S. v. Hoffman, No. 12-11529 (Feb. 26, 2013), the Court rejected the argument that a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(viii) was “cruel and unusual” punishment in violation of the Eighth Amendment. Hoffman argued that his sentence violated the Eighth Amendment because he committed the two prior convictions that triggered the mandatory life sentence when the was a juvenile.




Reviewing the issue for “plain error” – Hoffman had not preserved the issue in the district court – the Court found no precedent that made the life sentence unconstitutional. The Court noted that Miller v. Alabama, 1232 S.Ct. 2455 (2012) involved a juvenile offender facing punishment for conduct committed when he was a juvenile. Here, Hoffman was an adult offender, not a juvenile.

Dell: Constitution does not require "innovative" defense counsel

In Dell v. U.S., No. 11-12904 (Feb. 27, 2013), the Court rejected a claim that defense counsel was constitutionally defective, under Strickland v. Washington, for failing to argue, either during sentencing or on direct appeal, for a downward variance based on the substantial disparity between the Sentencing Guidelines’ treat of crack and powder cocaine.




At the time of Dell’s direct appeal to the Eleventh Circuit, the Supreme Court had already decided Kimbrough, which held that a district court was authorized to grant a downward variance based on a policy disagreement with the crack guidelines. On appeal, Dell’s appellate counsel failed to seek a vacatur of the sentence based on Kimbrough. Dell’s co-defendants did press the issue, and ultimately, at resentencing, received lower sentences; Dell did not.



Since Dell’s counsel in the district court had also failed to raised a Kimbrough-type argument, the appeal could only have raised Kimbrough in a “plain error” argument.



The Court noted that competent counsel would have been able to show error, because under pre-Kimbrough law the district court treated the crack guideline as mandatory. The error would have been “plain” at the time of appeal. But appellate counsel would not have been able to show that the error affected his substantial rights. Nothing in the record in the district court at the original sentencing indicated that the district court would have imposed a lower sentence, even had a Kimbrough argument been made. Where the record does not provide any indication that there would have been a different sentence, the party with the burden of showing a difference loses. Thus, appellate counsel could not have shown that substantial rights would have been affected. Dell in turn did not receive ineffective appellate assistance of counsel, since he was not prejudiced by counsel’s performance.



The Court also held that trial counsel was not deficient at sentencing for failing to anticipate Kimbrough. The Court noted that it has never required counsel to anticipate future legal developments. Lawyers rarely, if ever, are required to be innovative to perform within the wide range of conduct that encompasses the reasonably effective representation mandated by the Constitution.



[Martin, J., concurring, questioned the Circuit’s rule that substantial rights are not affected when the Court cannot know whether the outcome would have been different. Martin noted that a sentencing hearing is not a forum for a judge “to air his list of grievances” about existing law. Martin noted that in view of a statement by the district court at a subsequent resentencing, Dell likely would have received a lesser sentence had his appellate counsel pressed the Kimbrough issue. Martin nonetheless stated she was bound by Circuit precedent to join the majority].

Gandy: Affirming ACCA sentence

In U.S. v. Gandy, No 11-15407 (Feb. 27 , 2013), the Court rejected a challenge to the determination that a defendant’s three prior convictions qualified as “violent felonies” for purposes of the mandatory 15-year sentence under the Armed Career Criminal Act (“ACCA”).




The Court rejected the argument that the information and certified judgment of conviction for one Florida prior offense cited only a sentence enhancement provision statute number, not the number of the substantive provision governing “aggravated assault.” The Court noted that the information quoted the text of the aggravated assault statute, and this sufficed.



Citing recent precedent, the Court rejected the argument that simple vehicle flight did not qualify as a “violent felony.” The Court also rejected the argument that the “residual clause” of ACCA is unconstitutionally vague.



The Court also rejected the argument that the sentence was invalid because Gandy was incorrectly advised at his plea hearing that the statutory maximum was 10 years, when in fact he was subject to a 15-year mandatory minimum. The Court noted that at sentencing the district court gave Gandy an opportunity to withdraw his plea, and he declined to do so.

Turner: No ACCA relief for 2255 movant

In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as “violent felonies” for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”).




The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”



The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”



The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”



The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.



[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]

Joseph: 30 year sentence for physician who dispense drugs unlawfully

In U.S. v. Joseph, No. 09-11984 (Feb. 21, 2013), the Court affirmed the convictions and sentences of a medical physician and his assistant convicted of dispensing controlled substances to drug abusers and pushers without a legitimate medical purpose and outside the usual course of professional conduct, in violation of 21 U.S.C. § 841(a).




The Court rejected the argument that a jury instruction erroneously instructed the jury to consider whether the defendants acted “in accordance with a standard of medical practice generally recognized and accepted in the United States.” The Court found that this instruction did not suggest that defendants’ actions be evaluated against a single national standard of practice. Instead it required the prosecution to prove that the actions were inconsistent with any accepted standard of professional practice.



The Court rejected the argument that there was no probable cause to support the issuance of a search warrant, pointing out that the 39-page affidavit provided substantial evidence that evidence of crimes would be found including evidence that the physician’s patients died from drugs after he prescribed them.



The Court also rejected a challenge to the admission of testimony that many of the patients either abused their drugs or sold their drugs, rejecting the argument that this evidence was unduly prejudicial.



The Court rejected a substantive reasonableness challenge to the physician’s 30-year sentence, noting that the district court could have imposed a “much more severe sentence.”

Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation

In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U.S.C. §§ 545 and 371, failed to state an offense. The Court therefore vacated all convictions and sentences.

The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.

The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.

Capers: Insufficient foundation for audio recording of drug buy

In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act.




The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.



The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.



The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.



The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.

Gibson: No Standing to challenge GPS-search of vehicle

In U.S. v. Gibson, No. 10-15629 (Feb. 14, 2013), the Court held that a defendant had standing to challenge the use of a GPS tracking device to locate a vehicle the defendant possessed – but only when the device was installed, not when the device was later used to seize incriminating evidence while the vehicle was being driven by another person


Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently. A GPS device was installed on the Avalanche without a warrant while it was parked in James Gibson’s driveway. Using the GPS, the police tracked the car making suspicious trips to Ocala, Florida, a “source city for narcotics.” The police stopped the vehicle for a traffic violation. Burton, not Gibson, was driving the Avalanche. Two kilos of cocaine were found inside.

The Court (2-1) held that Gibson lacked standing to challenge the search of Avalanche, because he was not the legal owner of this vehicle, he did not have exclusive custody or control over it, and he was neither a driver or passenger in it at the time it was searched.

Gibson had standing to challenge police testimony, based on the GPS, that Gibson was in a certain location while in possession of the Avalanche. But any error in admitting this evidence was harmless.

The Court rejected the argument that Double Jeopardy was not violated when the district court instructed the jury that it could convict a defendant for his renewed participation in a conspiracy for which he had already been convicted. The Court noted the defendant’s failure to object to this instruction, and the district court’s cautionary instruction to the jury that the defendant was not subject to multiple prosecutions for a single conspiracy. The district court instructed that the defendant liability was limited to acts performed after his first conviction, and this limitation ensured that he was not twice placed in jeopardy for the same conduct.

Darden: Conceding guilt not presumed to be ineffective

In Darden v. U.S., No. 10-16640 (Feb. 12, 2013), the Court held that U.S. v. Cronic (1984) does not require a court to presume that a defense counsel’s decision to concede guilt at trial on one of two robbery charges, without consulting the defendant, is ineffective assistance under the Sixth Amendment.




The Court noted that at trial “credibility must never be sacrificed.” This applies when the defendant “faces an unwinnable battle against one set of charges.” Here, Darden’s counsel conceded guilt as to one robbery “for the express purpose of preserving credibility with the jury to focus on” the other, contested, robbery. In addition, Darden vigorously stressed the lack of evidence as to the second robbery. This was not a case of counsel’s “betrayal of his client.”



The Court also found that the failure to consult with the defendant on the strategy of conceding guilt, “while certainly” among counsel’s duties, did not automatically prejudice the defendant.

Davis: Dismissal of juror "manifestly necessary"

In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013),



the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.




The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.



The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”

Slaughter: No Suppression of statement under Harris

In U.S. v. Slaughter, No. 11-15262 (Feb. 11, 2013), the Court affirmed convictions for use of the internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).




The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station. The Court held that the statement need not be suppressed as the fruit of a poisonous entry. The police had probable cause to arrest Slaughter, and gave him his Miranda warnings at the station house. Under these circumstances, New York v. Harris (1990) does not require suppression of the statement.



The Court also rejected the argument that the district court should have severed the count that charged Slaughter as a registered sex offender from the other count. The Court recognized that the evidence that Slaughter was a registered sex offender was “prejudicial,” but the jury had already heard substantial, sexually explicit evidence that he intended to engage in sexual activity with two underage girls, and planned to meet them at a hotel room.



Finally, the Court rejected the argument that Slaughter could not be guilty of committing a felony offense involving a “minor” while being a registered sex offender, because he was not dealing with actual minors, but government agents posing as minors. The Court noted that the statute criminalizes attempts to entice minors, which does not require an actual minor.

In Re Grand Jury Proceedings No. 4-10: Required Records Exemption applies

In In Re: Grand Jury Proceedings, No. 4-10, No. 12-13131 (Feb. 7, 2013), the Court rejected the argument by targets of a grand jury investigation that their Fifth Amendment privilege against self-incrimination shielded their records of foreign bank accounts from production to the government in compliance with a grand jury subpoena. The Court held that these records were exempt from the Fifth Amendment under the Required Records Exemption.

The Court found that, although the purpose of the Bank Secrecy Act and its implementing regulations, which required persons to keep and file reports regarding their relations with foreign financial agencies, was partly in aid of criminal law enforcement, it was “essentially regulatory.” The Court also found that such records are “customarily kept.” Finally, the Court found that the records had “public aspects” which render them analogous to public documents. Consequently, the Required Records Exemption applied, and the target could not invoke the Fifth Amendment as a ground for non-compliance with the grand jury’s subpoena of its records of its foreign bank accounts.

Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range

In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U.S.C. § 3582(c)(2).




Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.



The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.



The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.



The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.