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.
Friday, June 21, 2013
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.”
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.”
Thursday, June 20, 2013
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
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
Monday, June 10, 2013
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.
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.
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.
Thursday, June 06, 2013
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.
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.
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