Eleventh Circuit Court of Appeals - Published Opinions
Wednesday, August 28, 2013
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.”
Thursday, August 22, 2013
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.
Tuesday, August 20, 2013
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.
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).
Thursday, August 15, 2013
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.
Tuesday, August 13, 2013
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.
Wednesday, August 07, 2013
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.
Tuesday, August 06, 2013
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.
Friday, August 02, 2013
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.