Symington: If agreed sentence is illegal, district court lacks authority to impose it

In U.S. v. Symington, No. 14-10482 (March 25, 2015), the Court held that the district court abused its discretion when it denied the defendant’s request to withdraw his guilty plea, when the plea agreement mistakenly stated that he would not be subject to the 15-year mandatory minimum of 18 U.S.C. § 924(e) (ACCA), and the district court so advised him at the plea colloquy. When the parties entered into the plea agreement, they mistakenly believed that Symington’s prior conviction for fleeing and eluding was a misdemeanor, not a felony, and he therefore did not qualify for ACCA’s 15-year mandatory minimum for offenders with three prior convictions. The district court told Symington at his plea colloquy that he was subject to a 10-year maximum. However, the PSI later determined that the prior fleeing and eluding conviction was a felony, and that Symington therefore qualified for ACCA’s 15-year mandatory minimum. Symington moved to withdraw his plea, but the district court denied this request – and imposed a 15-year sentence. The Court rejected Symington’s argument that he was entitled to specific performance of his plea agreement – a 10-year maximum sentence. The Court noted that because of ACCA’s mandatory 15-year minimum, a 10-year sentence would be “illegal”; “the district court lacked the authority to impose the unlawful sentence contained in the plea agreement.” The Court, however, agreed with Symington that he should be permitted to withdraw his plea, and vacated his judgment with directions to the district court that it permit Symington to withdraw his plea.

Jenkins: Adjudication withheld "conviction" certified to Florida Supreme Court

In U.S. v. Jenkins, No. 13-15874 (March 17, 2015), the Court certified to the Florida Supreme Court the question whether, under Florida law, a guilty plea for a felony for which adjudication was withheld qualifies as a “conviction.” Jenkins’ conviction for being a felon in possession of a firearm depended on whether his prior guilty plea with adjudication withheld to the Florida offense of possession of cocaine qualified as “conviction” under 18 U.S.C. § 922(g). The Court recognized its own prior precedent holding that a prior Florida conviction with adjudication withheld qualified as a conviction, but also recognized contrary indications from two lower appellate courts in Florida, and from language in Florida Supreme Court decisions. Faced with “conflicting commands,” the Court certified the legal question to the Florida Supreme Court.

Edmond: Vacating conviction where plea agreement based on unindicted crime

In U.S. v. Edmond, No. 13-14381 (March 16, 2015), the Court, on plain error review, reversed a conviction obtained pursuant to a plea agreement. The indictment charged Edmond with access device fraud and with aggravated identity theft. Edmond entered into a plea agreement. The plea agreement, however, incorrectly described the Count as to which Edmond agreed to plead guilty (it referred to a conspiracy offense, when the indictment referenced a possession offense), and misstated the statutory maximum penalty. The error that Edmond pled guilty to a crime for which he was not indicted was not discovered until after oral argument on appeal. The Court held that there was “plain error.” The district court violated Edmond’s constitutional rights by accepting a guilty plea for a crime not charged in the indictment. Because Edmond was now serving a sentence for this erroneous conviction, the error clearly affected the outcome of the proceedings.

Hollis: Protective sweep justifies search

In U.S. v. Hollis, No. 13-13780 (March 12, 2015), the Court held that evidence was discovered in plain view during a protective sweep incident to an arrest, and therefore rejected the defendant’s Fourth Amendment challenge. Without addressing the government’s argument that Hollis, as a mere “guest” in another’s apartment, had no expectation of privacy, the Court found that the search of the apartment was incident to Hollis’ arrest and a valid attempt to ensure that the apartment did not contain other dangerous persons. Here, the police had been told that the apartment was a “drug house,” and could draw the rational inference that persons inside might be armed. The police found drugs in plain view during the protective sweep, and this evidence was admissible. The Court also found no error in the district court’s decision that a proffered defense expert lacked the necessary expertise to testify about the sufficiency of a latent fingerprint, noting the witness’s lack of qualification in fingerprint comparison.

Rivera: Statements incapable of being true or false are not hearsay

In U.S. v. Rivera, No. 13-13125 (March 12, 2015), the Court affirmed convictions for murder for hire in violation of 18 U.S.C. § 1958. The Court rejected the argument that the statements by a third person – the wife of the hit-man-to-be – to the defendant in a recorded conversation should have been excluded as hearsay. The Court rejected the argument that statements by a person other than a defendant in a recorded conversation must be excluded as hearsay merely because those remarks occurred outside the courtroom. The Court explained that the wife’s statements were either non-assertive statements that are incapable of being true or false, or statements that were indisputably false. The statements were offered to show the effect they had on the defendant, and to provide context for his statements. As to one statement that was arguably offered for its truth, the defendant failed to seek a limiting instruction. The Court also rejected the argument that the wife of the hit-man-to-be should not have been permitted to give lay opinion testimony about her understanding of the substance of her conversation with the defendant. The Court noted that she was a participant in the conversation, and her testimony was helpful to the jury in clarifying a back-and-forth dialogue that contained abbreviated and unfinished sentences, and ambiguous references to events. The Court recognized that several times during cross-examination of the defendant, the prosecutor improperly asked whether other witnesses were lying. However, these “were-they-lying” questions did not prejudice the defendant, light of the substantial evidence of his guilt. Nonetheless, the court urged the United States Attorney’s offices in the Circuit “to do a better job of training their attorneys on this point.”

Davis: Okay to ask if witness was a "chaplain"

In U.S. v. Davis, No. 13-12436 (March 5, 2015), the Court affirmed a conviction for possessing an unregistered short-barreled shotgun in violation of 26 U.S.C. § 5861(d). Fed. R. Evid. 610 provides that evidence of a witness’s religious beliefs or opinions is not admissible to attach or support the witness’s credibility. The Court rejected the argument that the district court violated Rule 610 when it allowed the government to elicit from a police officer’s testimony the fact that he was employed as a “chaplain.” The Court noted that this did not inquire into the witness’s religious beliefs. Further, proving a witness’s job is not the same as attacking or supporting a witness’s credibility. The Court noted that a challenge to asking a witness about his position as a chaplain might arise under Fed. R. Evid. 403, but here the defense did not invoke this Rule. At trial, the defense requested a jury instruction that it is legitimate for defense counsel to attack the credibility of a police officer based on his or her interest in the outcome of the case. The Court agreed with the district court that there was no need for this instruction, and the standard instructions on credibility, though not controlling, were adequate. Finally, the Court rejected the challenge to giving a modified Allen charge to a deadlocked jury. The Court found no error in giving the charge in two installments, over time. The Court noted that the instruction was given after the jury reported its deadlock after 3 hours of deliberation, and that the court told the jury that if it worked through lunch and was still deadlocked it would be discharged.

Melton: Youthful death penalty issues not "debatable"

In Melton v. Sec., Fla. Dep’t of Corrections, No. 13-12967 (March 3, 2015) (2-1) (Martin, J., dissenting), the Court denied a motion for a certificate of appealability, finding the issues not “debatable.” Melton claimed that his prior conviction for a murder committed when he was under 18 years of age should not have been used as an aggravating factor for imposition of the death penalty. The Court noted that no Supreme Court precedent suggested that this might be the law, and the Florida Supreme Court’s rejection of this argument therefore did not violate “clearly established Federal law.” The Court also found no debatable issue in the claim that, even though Melton was over the age of 18 when he committed his capital offense, some of the factors of youth were still present, and should have been considered as mitigating factors.

Hernandez: Padilla applies even if after guilty plea

In Hernandez v. U.S., No. 13-10352 (March 2, 2015), the Court held that the district court abused its discretion in denying an evidentiary hearing to a defendant who claimed that he received ineffective assistance of counsel when she incorrectly advised him about the immigration consequences of pleading guilty to marihuana trafficking. The district court held that Padilla v. Kentucky, which held that counsel must inform her client whether his plea carries a risk of deportation, did not apply because the case was decided after Hernandez enter his plea. Reversing, the Court explained that the question was not whether defense counsel failed to raise an argument which later would prove meritorious, but whether counsel performed deficiently when she mis-advised Hernandez about the consequences of his guilty plea. Moreover, Hernandez alleged that he would have chosen to risk longer incarceration for the chance to avoid deportation. These facts, if true, would have proven that counsel performed deficiently, and prejudice. Hernandez was therefore entitled to an evidentiary hearing.

Everett: Request for DNA Sample is not "Interrogation"

In Everett v. Sec., Fla Dep’t of Corrections, No. 14-11857 (Feb. 27, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 2001 murder. The Court rejected the argument that the police violated Everett’s Fifth Amendment right to silence when, after he requested a lawyer, the police request his consent to obtain DNA samples. The Court noted that the right to silence merely requires the police to cease “interrogation.” The Court held that the Florida Supreme Court reasonably concluded that the request for DNA consent did not amount to “interrogation,” noting that this request is not reasonably likely to elicit an incriminating verbal response.