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.”