Defense Newsletter Blog

Brown: Value Means Face Value not Actual Worth

2011-12-27T14:25:00.001-05:00

In U.S. v. Brown, No. 10-12273 (Dec. 23, 2011), the Court affirmed convictions and a restitution order arising out of mail fraud and interstate transportation of forged securities.

The Court rejected Brown’s argument that the admission of evidence of two similar schemes involving his attempt to deposit IRS tax refund checks with forged endorsements into checking accounts in his name violated Fed. R. Evid. 404(b). The Court noted that this evidence was relevant to disprove Brown’s defense that he was the victim of identity theft in the charged transaction.

The Court also rejected Brown’s challenge to the sufficiency of the evidence. The Court found sufficient evidence from which the jury could infer that the checks at issue had a “value” of at least $5,000, the jurisdictional threshold for a violation of 18 U.S.C. § 2314. Brown argued that the checks were worthless, because they were cancelled months before they were transported in interstate commerce, but the Court found that the value was “the amount payable written on the face of the checks.” The Court cited precedent from other circuits holding that “value” means “face value,” not “actual worth.” Here the face value of the checks exceeded $5,000.

The Court also affirmed a restitution order, rejecting, based on prior Circuit precedent, Brown’s argument that the total amount should not have included losses caused by schemes not expressly charged in the indictment and outside the statute of limitations. The Court noted that the other transactions “fit well within the overarching scheme alleged in the indictment.”

Magwood: Unforeseeable Imposition of Death Penalty violates Due Process

2011-12-22T16:14:00.001-05:00

In Magwood v. Warden, No. 07-12208 (Dec. 19, 2011), the Court granted habeas relief to an Alabama death row inmate, finding that his death-sentence, imposed for a 1979 murder of a Sheriff, violated the fair warning requirement of the Due Process Clause, because one of the aggravating circumstances that was relied upon was based on an unforeseeable and retroactive judicial expansion of statutory language.

The Court noted that at the time of Magwood’s murder, the murder of a law enforcement officer was not listed as an aggravating circumstance to qualify a person for the death penalty. However, a subsequent Alabama case suggested that this was a valid basis for imposition of the death penalty.

The Court rejected the argument that Magwood had defaulted this argument by failing to raise it in the Alabama courts, finding that because Magwood would be “actually innocent” of the death penalty, his procedural default was excused.

The Court rejected the argument that Due Process did not embody the Ex Post Facto protection against the infliction of greater punishment through the application of unforeseeable judicial interpretation of a law, noting that Magwood would otherwise be subject to the death penalty. The Court found that the Alabama case that interpreted Alabama law to make Magwood qualify for the death penalty was an “unexpected and indefensible construction of narrow and precise statutory language,” and therefore violated Due Process’ fair warning requirement.

Davila: Magistrate Judge May Not Participate in plea negotiations

2011-12-22T15:39:00.001-05:00

In U.S. v. Davila, No 10-15310 (Dec. 21, 2010), the Court vacated a guilty plea and remanded the case with instructions to assign the case to another district judge with the instruction that the magistrate judge who handled Davila’s case be disqualified, because, during a hearing before the Magistrate Judge, he told the defendant that there may be “no viable defenses” to the charges against him, and that the defendant would receive a more favorable sentence if he pled guilty than if he stood trial.

The Court noted that, even under plain error review, the magistrate judge’s comments were grounds for reversal. Federal Rule of Procedure 11(c)(1) establishes a “bright-line” that prohibits the participation of a judge in plea negotiations under any circumstances. Judicial participation is presumed when a judge contrasts the sentence a defendant would receive if he pled guilty with the sentence he would receive if he went to trial and was found guilty. No individualized prejudice need be shown. Accordingly, the Court vacated the conviction.

Consalvo: Credibility issues not suited to habeas

2011-12-13T17:06:00.000-05:00

In Consalvo v. Sec. Dep’t of Corrections, No. 10-10533 (Dec. 12, 2011), the Court affirmed the denial of habeas relief to a Florida death row inmate.

The Court found that all of Consalvo’s challenges to his state murder conviction involved the credibility of witnesses. “Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review.” The Court found no unreasonable factual determination by the state courts.

The Court also rejected the challenge to the sentence based on the trial court having relied on deposition testimony that was not presented in open court. The Court found this error “harmless” in light of fact that the facts referenced in the deposition testimony were also established by other competent evidence at trial.

Martinez-Gonzalez: Possession of Forgery is "Aggravated Felony"

2011-12-07T15:22:00.000-05:00

In U.S. v. Martinez-Gonzalez, No. 10-15360 (Dec. 6, 2011), the Court affirmed the imposition of an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(a), on a defendant convicted of illegal re-entry into the United States, based on a prior conviction for an “aggravated felony”: the defendant’s prior Alabama conviction for possession of a forget document.

The Court rejected the argument that mere possession of a forged document, in contrast to the manufacture or production of forget items, did not constitute an “aggravated felony.” The Court joined all other Circuits to have considered the issue in concluding that possession of a forged document qualifies as an “aggravated felony.” The Court rejected application of the rule of lenity, finding no ambiguity because the vast majority of federal statutes that criminalize forgery proscribe possessing forged instruments or the equipment used to create those instruments.

The Court also rejected a substantive reasonableness challenge to the sentence, noting that the sentence was within the Guidelines and that the sentencing judge cited the evidence from Martinez-Gonzalez’ record of his “propensity to recidivate.”

White: Jefferson County Commissioner Convictions Affirmed

2011-12-01T10:58:00.001-05:00

In U.S. v. White, No. 10-13654 (Nov. 29, 2011), the Court affirmed convictions and the sentence for conspiracy and federal funds bribery of a former Jefferson County, Alabama Commissioner.

The Court rejected a challenge to the sufficiency of the evidence, pointing out that the owner of a contracting firm whose contracts were approved by White on behalf of the County testified that he made cash payments to White “to keep him pretty much happy” with his firm.

The Court also rejected White’s challenge to his 120-month, below Guidelines, sentence. The Court rejected White’s argument that he should not have a received a 16-level enhancement based on the over $1 million the contracting firm received in fees from the County, because the amount of the cash payments to White were only $22,000, and because the County would have hired the contractor regardless of the cash payments White received. The Court rejected this argument, finding that the evidence of White’s involvement – his votes to approve the contracts – sufficed to show that the company’s professional fees were a benefit “received in return for” the payments, as the Guidelines provided.

The Court also rejected a substantive reasonableness challenge to the sentence, pointing out that, under U.S. v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc), vacatur on this ground is only granted if the Court is “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”

Hill: Reasonable Doubt Standard does not unduly burden mentally retarded offenders

2011-11-23T15:14:00.001-05:00

In Hill v. Humphrey, No. 08-15444 (Nov. 22, 2011) (en banc) (7-4), the Court denied habeas relief to a Georgia inmate, rejecting his constitutional challenge to Georgia’s requirement that he prove his mental retardation beyond a reasonable doubt in order to avoid the death penalty. The Court found no “clearly-established” Supreme Court law supported the challenge.

The Court noted that Atkins v. Virginia held that it was unconstitutional to execute mentally retarded offenders, but left it to States to implement the procedural rules to prevent the execution of these offenders. The Court also noted that in Leland v. Oregon (1952), the Supreme Court held that Due Process was not violated when, for an insanity defense, a State required the defendant to prove his insanity beyond a reasonable doubt.

The Court also rejected the argument that requiring a mentally retarded person to prove his mental retardation beyond a reasonable burdened the Eighth Amendment right not to be executed. The Court found no Supreme Court decision holding that such a right exists.

The Court further noted that Georgia law affords a mentally retarded offender procedural safeguards. The Court rejected the argument that creating a burden on a defendant to prove mental retardation beyond a reasonable doubt creates too high a risk of erroneous executions, noting that any rule would allocate some risk to error to the defendant.

The Court rejected the dissent’s reliance on Pannetti v. Quarterman, finding that in an AEDPA habeas context, a court could not “import” a procedural burden of proof requirement from Panetti into the Atkins context.

Fulford: "Minor" is not anyone the defendant believes is a minor

2011-11-15T15:08:00.001-05:00

In U.S. v. Fulford, No. 10-12916 (Nov. 14, 2011), the Court (Carnes, Dubina, Sands b.d.) held that the five-level enhancement of USSG § 2G2.2(b)(3) for distribution of child pornography to a minor did not apply when there was no evidence that the person who received the materials was a minor. The district court had imposed the enhancement because the evidence indicated that the defendant believed that the person who was receiving the materials was a minor; this person, even if an adult, was posing as a minor.

Reversing, the Court noted that the plain language of the definition of a “minor” in the Guideline did not include “anyone the defendant believes is under the age of 18.” Consequently, this omission foreclosed inclusion of this category as a basis for a § 2G2.2(b)(3) enhancement.. “Even if expanding the guidelines definition to cover the facts of this case would be an improvement, it is not our function to modify, amend, or improve statutes or guidelines.”

The Court found unpersuasive the government’s attempts to extend the rationales of other child pornography cases, in which enhancements were applied even though the victim was not a minor but a police officer posing as a minor. The Court contrasted the “clear intent” of Guidelines enhancements to apply in such cases with the text of the Guidelines in § 2G2.2(b)(3). The Court also questioned the reasoning of one of its precedents in which the term “minor” was interpreted “more broadly” than the actual language of the Guidelines.

The Court remanded the case to the district court, for it to rule in the first instance on the government’s alternative argument that the evidence showed that Fulford’s victim was, in fact, a minor.

Walton: Second Florida petition not "properly filed"

2011-11-14T14:58:00.000-05:00

In Walton v. Sec. Dep’t of Corrections, No. 11-10558 (Nov. 9, 2011), the Court affirmed on untimeliness grounds the denial of habeas relief to a Florida inmate sentenced to death in 1989.

After his first state petition for habeas relief was denied by the Florida Supreme Court, Walton filed a second state petition. However, this second petition was not “properly filed,” as required to toll the running of AEDPA’s one-year statute of limitations for federal habeas petitions. The second petition was not properly filed because it was not accompanied with a brief in appeal of the denial of his first motion for postconviction relief, as required by Florida law. Although the Florida Supreme Court did not find that the second petition was untimely, the Court found that it was untimely, under Florida law, and therefore failed to satisfy the “properly filed” requirement of AEDPA.

Augustin: Terrorism convictions affirmed

2011-11-02T16:31:00.000-04:00

In U.S. v. Augustin, No. 09-15985 (Nov. 1, 2011), the Court affirmed terrorism-related convictions in connection with a plans to provide support to al Qaeda and bomb the Sears Tower in Chicago.
The Court rejected the argument that the government should not have been permitted to amend the indictment to delete surplusage, noting that the government is in fact permitted to do so.
The Court also rejected the argument that the Constitution’s Treason Clause, which requires a showing that the defendant owed allegiance to the United States, foreclosed conviction under certain counts, because they did not allege that the defendants swore an oath of allegiance to al Qaeda. The Court noted that the statutes at issue did not have as an element allegiance to the United States, and therefore did not implicate the Treason Clause.
Though recognizing that the proof was "far from overwhelming," the Court rejected challenges to the sufficiency of the evidence, noting that the defendants photographed buildings as potential terrorist targets, and volunteered to serve under al Qaeda. Moreover, they participated in an oath ceremony.
The Court rejected the argument that the government’s involvement in creating the crime was so pervasive that it violated Due Process. The Court found that the conduct was not "outrageous."
The Court also rejected the argument that an FBI agent gave opinion testimony about the defendant’s criminal mind that was inadmissible under Fed. R. Evid. 704(b). Though recognizing that there is a "fine line" between testimony about what an observer "would take to be" the defendant’s intent and testimony about a defendant’s "actual state of mind," the Court concluded that the agent’s testimony left the ultimate issue of the defendant’s state of mind to the jury.
The Court found that the district court properly qualified a witness as an expert to testify about a criminal organization’s structure, noting the witness’ experience and qualifications.
The Court upheld the district court’s exclusion of testimony of a witness proffered by the defense to testify about gangs. The Court noted that, under Fed. R. Evid. 701, the testimony was only admissible to the extent it was based on perception, and impermissible if based on "expertise."
The Court found no error in the dismissal of a juror during deliberations. The district court has broad discretion in dealing with juror misconduct. Here, it questioned each of the other jurors individually, as well as the juror who was said not to want to follow the court’s instructions on the law.

Dominguez: Reversing and Affirming Cuban Baseball Player smuggling

2011-10-31T16:27:00.001-04:00

In U.S. v. Dominguez, No. 07-13405 (Oct. 31, 2011) (2-1) (Tjoflat, J. dissenting in part), the Court reversed convictions arising under 8 U.S.C. § 1324 for transporting and harboring aliens (Cuban baseball players) based on the insufficiency of the evidence, but affirmed convictions for conspiracy to smuggle, aiding and abetting an attempted smuggle, and aiding and abetting a smuggle.

The Court found that the evidence was insufficient to support convictions for transporting aliens within the United States to further illegal status, pointing that while they lived in the United States the baseball players played baseball, went out with friends, ate at restaurants, watched baseball games, and were showcased in front of Major League baseball scouts. The players lived freely and openly “and in no way acted in a manner suggesting they were avoiding immigration officials.” Contrary to the government’s contention, the three-month wait before the players were taken to immigration officials did not suffice to show illegal transportation,because there is no specific time requirement for presenting Cubans to immigration officials.

For the same reason, the Court reversed the “harboring” aliens convictions, finding that Dominguez did not facilitate the players’ escaping detection.

The Court affirmed convictions for conspiring to bring aliens to the United States, noting the testimony of a government cooperating witness that “he had an extensive and ongoing smuggling relationship with Dominguez,” including a $125,000 payment to fund the smuggling of the five Cuban baseball players.

The Court also affirmed aiding and abetting convictions, noting that Dominguez paid for the smuggling of the Cuban baseball players. The Court rejected the argument that the evidence was insufficient because Dominguez did not earn a substantial fee for signing the players to Major League contracts, noting that “financial success” is not an element of the offense.

The Court rejected the argument that the Wet Foot/Dry Foot policy of the Cuban Adjustment Act precluded having the requisite mens rea to unlawfully smuggle Cuban aliens. The Court found that the statute does not require “specific intent,” or “willfully” smuggling, but only a “reckless disregard” for the alien’s unauthorized status. Further, an undocumented alien who is in the United States must still be paroled, a process that reclassifies the alien from one who is illegally in the United States to one who is legally in the United States. Thus, the Wet Foot/Dry Foot policy “is not relevant to a conviction for smuggling Cubans into the United States.” For the same reason, the Court found no error in failing to instruct the jury about the Wet Foot/Dry Foot policy.

Guzman: Granting habeas relief based on false testimony

2011-10-28T15:11:00.001-04:00

In Guzman v. Sec. Dep’t of Corrections, No. 10-11442 (Oct. 27, 2011), the Court affirmed the grant of habeas relief to a Florida death row inmate. The Court found that the Florida Supreme Court unreasonably applied Giglio when it ruled that Guzman was not entitled to a new trial based on false testimony presented to the jury.

The Florida Supreme Court ruled that while false testimony was presented at trial – two detectives falsely testified that a government witness received no benefit for cooperation when the witness was in fact paid $500 – this testimony was not “material.” The Florida Supreme Court reasoned that the witness’ credibility was amply impeached at trial. Reversing, the Court found that the impeachment was not so complete that there was “no reasonable possibility” that the false testimony could have affected the verdict. In addition, the remaining evidence of guilt was sufficiently “weak” “circumstantial” and “far from overwhelming” to foreclose an impact on the verdict. The witness was “critical” to the State’s case against Guzman, because she contradicted Guzman’s testimony about the events surrounding the murder. In addition, the witness changed her account after receiving $500 reward money.

The Court also found it significant that Guzman testified in his defense at trial, presented witnesses, and otherwise challenged the State’s evidence.

John Doe: "Unwavering Confidence" support Aggravated Identity Theft Conviction

2011-10-27T17:10:00.001-04:00

In U.S. v. John Doe, No 09-15869 (Oct. 26, 2011), the Court held that there was sufficient evidence to sustain convictions for aggravated identity theft in connection with a passport application, in violation of 18 U.S.C. § 1028A(a)(1).
Citing U.S. v. Gomez-Castro, 605 F.3d 1245 (11th Cir. 2010) and U.S. v. Holmes, 595 F.3d 1255 (11th Cir. 2010), the Court noted that proof that a defendant "knowingly" used another person’s identity can be established based on circumstantial evidence such as the defendant’s prior use of this person’s identity to obtain a driver’s license or other identification. Here, John Doe had used the same person’s identity to obtain a Florida driver’s licence just months before attempting to use the identity to obtain a passport.
The Court also noted the defendant’s "unwavering confidence" in the accuracy of the identity he was using, as he returned to the Passport Agency, knowing that the Agency could have investigated whether the identifying information belonged to a real person.
Turning to sentencing, the Court rejected the argument that any misstatements the defendant gave about his name to a probation officer preparing a pretrial services report for a magistrate judge were "immaterial" to the prosecution, and therefore did not justify the imposition of a two-level "obstruction of justice" enhancement pursuant to USSG § 3C1.1. The Court noted that the "threshold for materiality is ‘conspicuously low’" with regard to § 3C1.1 enhancements. No actual, significant obstruction or hindrance is required.
The Court also rejected the argument that because pretrial services did not give him any Miranda warnings, the application of the enhancement violated the Fifth Amendment. The Court analogized an interview with pretrial services to "routine booking" questions where Miranda warnings are not required.

Perez: Counsel can't substitute for defendant's allocution

2011-10-27T15:49:00.001-04:00

In U.S. v. Perez, No. 09-13409 (Oct. 26, 2011), the Court affirmed Hobbs Act and firearm possession convictions of several defendants arising out of plans to rob a check-cashing store and a fictional cocaine stash house, but, on plain error review, reversed one defendant’s sentence because the district court failed to afford him his right of allocution as required by Federal Rule of Criminal Procedure 32.

The Court rejected one defendant’s argument that the evidence was insufficient to support “constructive possession” of a firearm. The Court found sufficient evidence that the defendant knew of the presence of firearms, based on conversations that predicted the need for guns, and his direct involvement in the crime, including his possession of five stocking caps for use in an attempted robbery.

The Court rejected the argument that a prosecution witness, who invoked his Fifth Amendment right to silence at a pre-trial deposition, should have been compelled to answer defense questions. The Court noted that because the witness’ answers could plausibly contradict the statements he made in a signed affidavit, he would risk prosecution for perjury, and the district court therefore correctly did not compel answers in derogation of the witness’ right to silence.

The Court also rejected the argument that evidence obtained through wiretaps should have been suppressed that the government, because the government failed to demonstrate that it needed to conduct wiretap surveillance, as required by 18 U.S.C. § 2518(1)(c). The Court noted that without a wiretap the government “had only limited knowledge of the full extent” of the criminal activities of the defendants. The government had sufficiently described the limitations of alternative surveillance methods to justify use of a wiretap.

Turning to sentencing, the Court ruled that even though at sentencing defense counsel answered the district court on behalf of the defendant that the defendant “doesn’t wish to address the Court,” this did not satisfy Fed. R. Crim. P. 32. This rule requires the defendant to be aware of his right to allocute. Here, there was no evidence of such knowledge. Because it is presumed that a denial of the defendant’s right to allocute is prejudicial whenever the possibility of a lower sentence exists, the error affected the defendant’s substantial rights. The Court therefore vacated the sentence and remanded for resentencing.

Delgado: Double Jeopardy Inapplicable When Conviction Overturned on Legal Grounds

2011-10-21T10:07:00.001-04:00

In Delgado v. Florida Dep’t of Corrections, No. 10-13490 (Oct. 13, 2011), the Court denied habeas relief to a Florida death row inmate convicted of two 1990 murders.

Delgado argued that Double Jeopardy should have precluded his re-prosecution for murder after his initial conviction for murder was overturned on appeal. The Court noted, however, that Double Jeopardy does not bar re-prosecution after a successful appeal unless the conviction was overturned because of the insufficiency of the evidence, i.e. the equivalent of a jury’s acquittal. In Delgado’s case the conviction was overturned not because of insufficient facts, but on the ground that it was obtained under a legally inadequate theory, that is, a theory of felony murder that did not require a showing that the predicate burglary involved surreptitious entry into a dwelling. Double Jeopardy, therefore, did not bar re-prosecution, and Delgado could not obtain habeas relief from his conviction or death sentence.

McKay: Actual Innocence does not encompass legal claims

2011-09-29T15:59:00.000-04:00

In McKay v. U.S., No. 09-15099 (Sept. 22, 2011), the Court held that a career offender could not seek a sentence reduction in a proceeding under 28 U.S.C. § 2255 based on intervening Supreme Court caselaw that made one of his prior convictions no longer qualify as a “crime of violence.” The Court noted that the defendant had failed to challenge the prior conviction in his direct appeal of his sentence. He therefore waived the issue for a future § 2255 motion. The Court rejected the argument that the “actual innocence” exception might excuse the default. The Court held that the “actual innocence” exception applies only to “factual” innocence, not to legal claims. Here, the defendant did not argue that he was innocent of the prior carrying a concealed weapon offense, only that this offense no longer qualified as a “crime of violence.” The Court held that this did not suffice to establish “actual innocence.”

Jayyousi: Terror convictions affirmed; sentence reversed

2011-09-20T14:41:00.000-04:00

In U.S. v. Jayyousi, No. 08-10494 (Sept. 19, 2011), the Court affirmed (2-1) the convictions of three defendants for offenses relating to their support for Islamist violence overseas, but vacated the sentence of defendant Padilla.

The Court rejected the argument that the district court erred in admitting under FRE 701 the testimony of an FBI agent about the meaning of code words in conversations among the co-defendants. The Court found that the testimony was based on five years of investigation, and review of thousands of wiretap summaries – it was rationally based on his perception. The Court noted it had “never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation.”

The Court rejected challenges to the sufficiency of the evidence, noting, inter alia, that defendant Padilla was “secretive” about his plans to attend an al-Qaeda training camp, that the conspirators planned for him to travel to fight in “jihad,” and that Jayyousi oversaw the purchase of satellite phones to send to Chechnya to aid in armed conflict.

The Court rejected Padilla’s challenge to the admission of statements he made without Miranda warnings during his interview with FBI agent at Chicago O’Hare airport. The Court noted that questioning at the border must rise to a “distinctly accusatory level” before a person is deemed in “custody.” The Court found that the questioning was not accusatory until one agent accused Padilla of links to a terrorist organization. It rejected the dissent’s contention that the questioning became accusatorial when an agent confronted Padilla about not the telling the truth and about the source and purpose of the money he had failed to declare.

The Court rejected Padilla’s argument that the indictment should have been dismissed because of the outrageous government conduct when he was held in custody as an enemy combatant at a Navy Brig in South Carolina. The Court held that the outrageous government conduct doctrine only applies when the government conduct relates to the defendant’s underlying or charged criminal acts. Padilla’s claim related to mistreatment at the brig after the conclusion of his criminal acts.

The Court rejected co-defendant Hassoun’s argument that the district court should not have excluded a statement that someone other than Hassoun recruited Padilla for jihad. The Court found that the statement lacked the exceptional trustworthiness required under FRE 807 to admit otherwise inadmissible hearsay.

Turning to sentencing, the Court affirmed the district court’s imposition of a Guidelines terrorism sentence enhancement. The Court found that the defendants’ intended outcome was to displace “infidel” government that opposed radical Islamist goals. As to Padilla, however, the Court reversed the district court’s 208 months’ sentence. The Court faulted the district court for failing to adequately reflect Padilla’s criminal history. The district court also failed to account for Padilla’s “heightened risk of future dangerousness due to his al-Qaeda training.” The district court also failed to consider significant distinctions between Padilla and the other offenders the district court referenced. because these offenders pleaded guilty, were convicted of less serious offenses, or lacked extensive criminal histories. Finally, although the district court’s reliance on Padilla’s harsh conditions of pretrial confinement was a valid basis for a sentence reduction, it did not justify a reduction as “extensive” as the one the district court gave Padilla. The Court therefore remanded the case for resentencing.

Valle: 2254 cannot be used to challenge clemency procedures

2011-09-15T12:35:00.000-04:00

In Valle v. Sec. Fla. Dep’t of Corrections, No. 11-13962 (Sept. 8, 2011) the Court held that a habeas petition under 28 U.S.C. § 2254 could not be used by an inmate to challenge clemency proceedings. Complaints about clemency procedures may only be brought under 42 U.S.C. § 1983. The Court also denied a stay of execution, finding that Valle had not shown a substantial likelihood of success on his clemency claims.

Shaygan: Hyde Amendment Sanctions Reversed

2011-08-29T16:03:00.000-04:00

In U.S. v. Shaygan, No. 09-12129 (Aug. 29, 2011) (2-1) (Edmondson, J., dissenting in part), the Court reversed an award of attorneys’ fees to an acquitted criminal defendant.

The Court noted that under the Hyde Amendment, an award of attorneys’ fees to a criminal defendant is only warranted when a prosecution is “vexatious, frivolous, or in bad faith.” Rejecting the district court’s finding that the Superseding Indictment was filed as a result of a motion to suppress, and therefore in “bad faith,” the Court noted that the Superseding Indictment was filed with the support of newly discovered evidence. The prosecution was therefore “objectively reasonable.” The Court recognized the prosecutor’s threat that a “seismic shift” in the case would occur if the defense filed a motion to suppress, but found that this comment did not establish that the ensuing Superseding Indictment (which added 118 counts to the original indictment) was filed in subjective bad faith; “tough negotiating tactics and harsh words used by prosecutors cannot alone be grounds for a determination of bad faith under the Hyde Amendment.”

The Court also found that the district court violated the rights of the prosecutors when it publically reprimanded them without first affording them due process. The Court pointed out that the district court failed to give the prosecutors notice that it was considering a public reprimand. The prosecutors had no meaningful opportunity to be heard, or to cross-examine any witnesses. The Court remanded the case for further proceedings, and declined to assign the case to a different judge.

[Dissenting, Judge Edmondson argued that “the prosecutor’s personal vindictiveness prominently marked the Government’s [prosecution].” He therefore would have affirmed the attorneys’ fees award.]

Lopez: "Thug Mansion" convictions affirmed

2011-08-19T14:34:00.000-04:00

In U.S. v. Lopez, No. 09-12802 (Aug. 16, 2011), the Court affirmed fatal carjacking, drug trafficking, and firearm possession convictions and sentences of four co-defendants.

The Court rejected two drug trafficking co-defendants’ arguments that their trials should have been severed. The Court noted that defendants indicted together are usually tried together, and a defendant will rarely be able to show the requisite “prejudice” to avoid this result. Here, the co-defendants argued that they should not have been tried with co-defendants who were charged with crimes that were subject to the death penalty, but the Court found that this was not a sufficient ground for severance. The Court recognized that the joint trial brought into evidence the fact that two coconspirators had murdered a fellow drug dealer, his wife, and their two young children. But the district court instructed the jury not to consider this evidence against the co-defendants who were not charged with these crimes. In addition, the government presented “compelling evidence” of their guilt, mitigating the effect of “spillover” prejudice.

The Court rejected the argument that the district court, during jury selection, improperly required the co-defendants to agree unanimously on all 20 of their peremptory challenges. The Court noted that a district court is permitted to require co-defendants to agree by majority vote on the use of peremptories. In addition, other Circuits have held that it is not improper to require co-defendants to agree on the exercise of peremptory challenges.

The Court rejected the argument that there was insufficient evidence to support a search warrant of premises known as the “Thug Mansion.” The defendants argued that the passage of time between the murders and the search – 12 days – meant that probable cause had “faded away.” The Court pointed out that the police investigation continued during this period, and the “less-than-a-fortnight time lapse” would not prevent them from believing that evidence would still be found there.

The Court rejected a challenge to the admission of evidence of defendants’ prior drug deals. The evidence was admissible because it provided “context” and established the trust among the parties for the drug transactions that were part of the charged offenses.

Willis: Proper Limitations on 2255 resentencing

2011-08-18T16:42:00.001-04:00

In U.S. v. Willis, No. 09-15676 (Aug. 17, 2011), the Court rejected a defendant’s arguments that he should have received additional sentence reductions at a § 2255 resentencing beyond no longer categorizing him as a career offender.

The Court found that Willis was barred from asserting additional ineffective assistance of counsel, because these claims were either waived in his brief, or had not been a subject of a certificate of appealability after being denied by the district court. The Court also found that the district court had properly limited Willis’ § 2255 resentencing, because it declined to review aspects of his sentence that were without error.

The Court also rejected the argument that his statutory right to receive 10-days notice of a PSR prior to (re)sentencing was violated. The Court found that any error was harmless, because the resentencing was limited to striking the career offender enhancement, and the resentencing PSR contained the same information as the original PSR, which Willis had received years earlier.

Barrington: Affirming Convictions for Inflating Grades

2011-08-18T16:02:00.001-04:00

In U.S. v. Barrington, No. 09-15295 (Aug. 11, 2011), the Court affirmed convictions and sentences of a defendant convicted of computer fraud and aggravated identity theft in connection with a scheme to inflate grades of students at Florida A & M University.

The Court rejected Barrington’s challenge to the admission of his prior involvement in changing grades, finding the evidence admissible under FRE 404(b) to prove Barrington’s intent to commit the charged offense.

The Court also rejected the argument that Barrington should have been allowed to cross-examine a government witness about his pending state burglary charge, pointing out that this charge was only “marginally relevant,” and that other cross-examination adequately brought out the witness credibility issues.

Reviewing the issue for “plain error,” the Court rejected the argument that inflated grades did not constitute “a thing of value” for purposes of the federal fraud statutes. The Court found that by changing grades from failing to non-failing, the scheme deprived A&M of additional tuition the students would have paid to retake the classes. In addition, the scheme changed the residencies of students, depriving A&M of the higher tuition that would have been paid by non-resident students.

The Court rejected the argument that the passwords of A&M employees were not personal identity information for purposes of aggravated identity theft. The Court noted that the passwords were unique to the employees and allowed them to access the protected grading system.

Turning to Barrington’s 84 month sentence, the Court rejected the contention that the district court improperly drew an adverse inference, and imposed a higher sentence when, after the district court asked “Do you still maintain that you did nothing wrong?” Barrington remained silent. The Court noted that failure to accept responsibility was an appropriate consideration in the determination of the sentence.

The Court rejected a challenge to the calculation of the “loss” amount based on the cost of students of retaking classes that they would have failed, but for the changed, inflated grades. The Court noted that the district court relied on the cost of tuition for the affected credit hours.

The Court also rejected a challenge to a sentence enhancement based on the use of “device-making equipment”and the production of “unauthorized access devices.” The Court found that the use of key loggers to use usernames and passwords to access identifiable student accounts met the statutory definition.

Singletary: Guess not enough to support restitution calculation

2011-08-16T14:06:00.000-04:00

In U.S. v. Singletary, No. 09-13892 (Aug. 15, 2011), the Court vacated a $ 1 million restitution order in a mortgage fraud case, because the district court failed to support this order with specific factual findings.

The Court pointed out that, unlike the amount of “loss” under the Sentencing Guidelines, which is determined using the greater of actual loss or intended loss, restitution must be based “on the loss the victim actually suffered.” The Court noted that at sentencing and restitution hearings, the government failed to establish the amount of the mortgage losses to the Federal Housing Authority (“FHA”). Further, the district court stated it might make a “reasonably intelligent guess” of the restitution amount, when in fact it was required to make specific factual findings.

The Court therefore vacated the restitution order and remanded the case for further proceedings. The Court instructed that on remand the government “is not receiving another bite at the apple.” The district court was instructed to calculate restitution based on “the evidentiary record as it now exists.”

Langford: Upholding Bribery Convictions of former Birmingham mayor

2011-08-05T14:33:00.002-04:00

In U.S. v. Langford, No. 10-11076 (Aug. 5, 2011), the Court (Marcus, Anderson, Mills b.d.) affirmed the convictions of a former Jefferson County, Alabama County Commissioner, and Mayor of Birmingham.

The Court rejected challenges to the sufficiency of the evidence supporting convictions of using the mail and wires to deprive the public of honest services. The Court found that Langford accepted bribes, which he did not disclose, and used the mails and wires to execute his scheme.

The Court also rejected a challenge to the district court’s refusal to redact the reference to Langford’s “gambling winnings” in his tax returns, noting, inter alia, that one might draw an inference that he was a law-abiding citizen from his dutiful report of these winnings.

The Court also rejected the argument that business records should not have been admitted, because the bank custodian had no personal knowledge of the documents. It sufficed that the custodian could testify that the documents were kept in the regular course of business.

The Court further rejected Langford’s challenge to the district court’s denial of his request for a change of venue. The Court noted that the trial occurred in Tuscaloosa, not in Birmingham or Jefferson County. The Court found no evidence of “rampant pretrial publicity.”

Chavez: Lawyer misconduct not sufficiently egregious to toll

2011-07-27T16:35:00.000-04:00

In Chavez v. Sec. Dep’t of Corrections, No. 10-13840 (July 25, 2011), the Court denied habeas relief to a Florida death row inmate because his petition was time-barred under AEDPA.

The Court found that defense counsel, whose delay in filing post-conviction motions caused Chavez’ ultimate federal petition to be untimely (because the one-year limitations period under AEDPA is only statutorily tolled during the period when a State post-conviction proceeding is pending) were merely negligent, and did not engage in the kind of “egregious attorney misconduct” that entitles habeas petitioners to equitable tolling. The Court also found that Chavez’ own lack of diligence in pursuing federal habeas relief precluded a finding of equitable tolling.

Cooper: Counsel's Failure to present mitigating evidence was ineffective

2011-07-22T14:38:00.000-04:00

In Cooper v. Sec. Dep’t of Corrections, No. 09-12977 (July 21, 2011), the Court granted habeas relief to a Florida inmate sentence to death for murders committed in 1982, finding that counsel was ineffective for failing to present mitigating evidence at the sentencing phase.

The Court found that counsel were ineffective in talking only to Cooper’s mother and a doctor when conducting a background investigation. The lawyers failed to interview potential witnesses, such as Cooper’s brother or sister, who would have testified about the extent of the abuse Cooper suffered from his father during his youth – testimony that the mother could not provide, because she was away for periods of Cooper’s life when she and Cooper’s father were separated.

Citing the its recent decision in Johnson, the Court found that Cooper was prejudiced by his lawyers’ ineffectiveness: “There was a wealth of mitigating evidence that was not presented.” This evidence would have supported both statutory and nonstatutory mitigators.

Ly: Court must correct pro se defendant's misunderstanding of right to testify

2011-07-20T16:07:00.001-04:00

In U.S. v. Ly, No. 09-12515 (July 20, 2011), the Court held that a district court is required to correct a pro se defendant’s obvious misunderstanding of his right to testify. The Court therefore reversed the convictions.

Ly, who represented himself pro se, misunderstood the nature of his right to testify: he did not know that he could testify on direct in narrative form, without being asked questions. The district said nothing to clear up his misunderstanding.

The Court held that where, as here, the district court (1) knew that the defendant had not “knowingly and intelligently” waived the right to testify, and (2) initiated a colloquy with the defendant on whether he would testify and reinforced the defendant’s mistaken view, the district court was required to correct the pro se defendant’s mistaken view.

The Court found that the error was not harmless. Ly “presented nothing” in his defense. “This absence deprived the jury of an alternative narrative.”

Chaplin: $1.8 million forfeiture not excessive

2011-07-14T14:55:00.000-04:00

In U.S. v. Chaplin’s, No. 10-10832 (July 13, 2011), the Court rejected an argument that a forfeiture order exceeded the Excessive Fines Clause of the Eighth Amendment.

Chaplin’s was a jewelry store in Atlanta, Georgia, convicted, after a government sting, of money laundering the proceeds of drug trafficking.

At sentencing, the Court imposed a $100,000 fine and ordered forfeiture of $1,877,262. Chaplin’s argued that the forfeiture was unconstitutionally excessive.

The Court noted that a fine is unconstitutionally excessive when it is “grossly disproportional to the gravity of a defendant’s offense.” The Court found that the $1,877, 262 forfeiture was not unconstitutionally excessive. The Court noted that the maximum fine was $1,500,000, and the Guideline range was $650,000 to $1,300,000. Even though Chaplin’s violation involved a government sting, it was a serious money laundering crime, and not an isolated event. The sentencing court stated that it imposed only a $100,000 fine because it had already ordered forfeiture of Chaplin’s jewelry inventory. Though the forfeiture exceeded the statutory maximum fine, the crime was more serious than the conduct in cases where courts found a forfeiture award excessive.

Stewart: 2255 Motion Not "Second or Successive"

2011-07-14T13:08:00.000-04:00

In Stewart v. United States, No. 09-15821 (July 14, 2011), the Court held that a § 2255 petition was not “second or successive” under the AEDPA, and should not have been dismissed on this basis.

After being sentenced as a career offender based on past State convictions, Stewart commenced proceedings in Georgia State court seeking to have his prior convictions vacated. While his State proceedings were pending, Stewart filed a first § 2255 motion in federal court, which was dismissed as time-barred. Years later, Stewart succeeded in getting his past state convictions vacated by Georgia State courts. He then filed a second § 2255 petition, attacking his career offender status on the ground that his past state convictions had now been vacated.

The Court held that because the basis for the second § 2255 motion did not exist until the Georgia courts vacated Stewart’s prior Georgia convictions, and because Stewart acted diligently in obtaining vacatur of his Georgia convictions, his second § 2255 motion was not subject to the AEDPA gatekeeping limitations on “second or successive” § 2255 motions.

Borden: Procedural dismiss in habeas is equivalent to adjudication on merits

2011-07-13T14:56:00.001-04:00

In Borden v. Allen, No. 09-14322 (July 12, 2011), the Court denied habeas relief to an Alabama death row inmate convicted of 1993 murders.

The Court agreed with Alabama courts that at the State post-conviction stage, Borden failed to adequately allege facts supporting his ineffective assistance of counsel claim at his state trial. The Court found that “nowhere” had Borden pled facts that would tend to show that he was prejudiced by his counsel’s allegedly deficient performance. The Court treated the dismissal by Alabama courts of Borden’s post-conviction proceedings as the equivalent of a determination on the merits, and it deferred to that determination as not unreasonable under AEDPA standards.

Ramierez-Garcia: Taking Indecent Liberties with a minor is a "Crime of Violence"

2011-07-13T14:12:00.001-04:00

In U.S. v. Ramirez-Garcia, No. 10-13279 (July 12, 2011), the Court held that a prior State conviction for taking indecent liberties with a minor qualified as a “crime of violence” for purposes of a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

The Guidelines provide that “sexual abuse of a minor” qualifies as a “crime of violence.” The Court noted that its precedent broadly defined “sexual abuse of a minor” as “a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” The Court rejected Ramirez-Garcia’s argument that it should revisit its definition of “sexual abuse of a minor” and adopt a new, narrower definition, based on a “generic” definition of the crime of “sexual abuse of a minor.” The Court found that coming up with such a generic definition would be difficult because of the variety of sex offense statutes in different States. Instead, the Court relied on the plain meaning of “sexual abuse of a minor,” and noted that the term encompassed conduct, like that covered by the State “taking indecent liberties” statute under which Ramirez-Garcia had been previously convicted.

Conner: No Procedural Bar to Mental Retardation Claim

2011-07-08T16:21:00.000-04:00

In Conner v. Hall, No. 10-10928 (July 7, 2011), the Court reversed the denial of habeas relief to a Georgia inmate sentenced to death for a 1982 murder.

The district court had rejected Conner’s challenge to his execution on the grounds of mental retardation because it found that Conner had procedurally defaulted this claim in the Georgia state courts. The Court noted that the procedural default bar only applies to State procedural rules that were consistently applied. The Court found that Georgia did not consistently apply a procedural bar to persons who claimed they were mentally retarded and should not be executed. The Court therefore remanded the case to the district court.

Bradley: Convictions Affirmed in $30 million medicaid fraud

2011-07-07T17:42:00.001-04:00

In U.S. v. Bradley, No. 06-14934 (June 29, 2011), in a 195-page opinion the Court reserved some convictions and upheld others in a prosecution involving medicaid fraud in excess of $30 million.

The Court rejected sufficiency of the evidence challenges to the fraud charges. The Court found that there was sufficient evidence that the defendants knew that Medicaid had a policy not to reimburse twice for medications that had been dispensed, and went to great lengths to conceal the fact that the medications for which they obtained reimbursements had been recycled.

The Court also rejected a challenge to venue. The Court found that when a defendant is charged with failure to file a form, venue lies in a district where the form should have been filed, so long as the government’s choice of venue does not create a constitutional hardship. The Court denied another challenge to venue by noting that a defendant is vicariously responsible for the acts of any co-conspirator, and because some acts occurred in the Southern District of Georgia, venue was proper there.

The Court rejected the argument that the seizure of large numbers of computers and hard drives violated the Fourth Amendment, because the warrant that authorized seizure of “all business records” lacked the requisite particularity. The Court held that the “pervasive fraud” doctrine applied, even though the fraud involved a small percentage of the defendants’ business, because the fraud “infected” numerous individuals and businesses, spread amongst a “myriad of records.”

The Court also rejected the argument that the Fourth Amendment was violated when a law enforcement agent ordered employees to shut down the computer servers while a warrant was being obtained, to prevent the employees from erasing data during the period the warrant was obtained. The Court found that the concern about erasure of date created an exigent circumstance that warranted shutting down the servers without a warrant.

The Court rejected the argument that the admission of evidence of defendants’ wealth was unduly prejudicial, in violation of Fed. R. Evid. 403. The Court found the evidence probative of the defendants’ motive, “even if only slightly so.”

The Court recognized that the admission of extrinsic acts as impeachment evidence violated Fed. R. Evid. 404(b), because the government gave no prior notice of its intent to use this evidence. However, the error was harmless.

The Court rejected one defendant’s challenge to the trial court’s exclusion, on hearsay grounds, of the statements of interlocutors in conversations. The Court found that this defendant sought to introduce these statements to show their truth, in violation of the hearsay rule.

The Court found no abuse of discretion in the trial court’s failure to investigate a juror’s report that two other jurors on the fourth day of trial had prejudged the defendants guilty. The Court found that the trial court’s admonition to the jurors to refrain from premature deliberations sufficed, in light of one juror’s subsequent statement about juror impartiality, and the jury’s eventual conviction on some counts and acquittal on others.

The Court found no error in the dismissal of a juror who had taken painkillers to get through back pain during the trial. The Court found that the dismissal was based on the juror’s poor health, not, as the defense contended, because the juror was the “one holdout” in the defendant’s favor.

Turning to sentencing, the Court found that the district court erred in including patients among the number of victims of the defendants’ medicaid fraud. The district court also erred in enhancing the sentence pursuant to U.S.S.G. § 2B1.1(b)(4) because a defendant was a “fence,” when the defendant was “a thief and not a fence.” However, the enhancement errors did not affect one defendant’s sentence, because the Guideline range remained above the statutory maximum sentence the defendant received. The errors did affect another defendant’s sentence, and the Court vacated this sentence because this defendant might have received a lesser sentence.

The Court found that the district court failed, for purposes of determining the applicable guideline to find, beyond a reasonable doubt, which offense two defendants conspired to commit. The Court therefore vacated these sentences.

Finally, the Court reversed the district court’s appointment of a receiver to marshal the assets of the defendant corporations in order to collect restitution. The Court noted that the government’s authority to seize and garnish property, and ability to obtain discovery under the Rules of Civil Procedure, made the extraordinary remedy of appointment of a receiver “inappropriate.”

Jones: Counsel Not Assumed to be ineffective Despite Comment

2011-06-29T15:51:00.001-04:00

In Jones v. Sec. Dep’t of Corrections, No. 08-12289 (June 28, 2011), the Court denied habeas relief to a Florida inmate on death row for two 1987 murders.

The Court deferred to the Florida courts’ determination that defense counsel was not ineffective, even after he stated in open court: “I want nothing further to do with [my client].” The Court stated: “We do not – and the law does not – assume that lawyers will fail to do their duty, even when the duty is painful and difficult.”

Ladson: Government failed to strictly comply with 851 notice requirement

2011-06-27T13:18:00.001-04:00

In U.S. v. Ladson, No. 10-10151 (June 24, 2011), the Court vacated a sentence of life imprisonment, because the government did not properly serve its 21 U.S.C. § 851 notice of enhanced sentence. The Court noted that § 851 requires the government to both file and serve the notice before trial. The government is required to”strictly comply with the service requirement before trial.”

The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.

The emails of trial counsel also did not show that the notice had been served.

Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.

Vera Rojas: FSA applies to crack offenders sentenced after August 3, 2010

2011-06-24T12:49:00.001-04:00

In U.S. v. Vega Rojas, No 10-14662 (June 24, 2011), the Court (Wilson, Martin, Anderson), held that the Fair Sentencing Act applied to crack cocaine offenders sentenced after the effective date of the FSA, August 3, 2010.

The Court distinguished U.S. v. Gomes, in which it had held that the FSA did not apply to a defendant sentenced prior to the FSA’s effective date.

The Court rejected the government’s reliance on the savings clause, 1 U.S.C. § 109 and Warden v. Marrero, on the ground that the repealing statute in that case specifically sought to preserve the harsher penalty for prosecutions initiated before its effective date. The FSA, by contrast, was “silent” on this point. The Court noted that Congress would not have intended for courts to sentence crack offenders under the old, higher mandatory minimums, until August 3, 2015, when the five-year statute of limitations would run. The Court noted that Congress granted the Sentencing Commission emergency authority to amend the crack cocaine Guidelines. Asking district courts to consider the date of the offense when determining the statutory minimum, and the sentencing date when applying the Guidelines, would lead to “incongruous” results. “The necessary inference is that the will of Congress was for the FSA to halt unfair sentencing practices immediately.”

Johnson: Counsel ineffective at sentencing phase

2011-06-17T16:15:00.001-04:00

In Johnson v. Secretary, DOC, No. 09-15344 (June 14, 2011), the Court held that a Florida death row inmate, convicted of a 1979 murder, was entitled to federal habeas relief because counsel was ineffective in preparing a mitigation case at the sentencing phase.

The Court found that defense counsel “waited until the eleventh hour” to begin preparing for the sentencing phase “and then, not surprisingly, failed to adequately do so.” Johnson had told counsel about his abusive alcoholic father and mother, and counsel failed to investigate. Counsel should have begun investigating mitigating evidence, because the evidence of culpability in the guilt phase was overwhelming.

The Court found that Johnson was prejudiced by the failure to present the “horrible” physical and emotional he experienced as a child.

Graham: Pro Se defendant not entitled to continuance

2011-06-17T15:24:00.000-04:00

In U.S. v. Graham, No. 14736 (June 14, 2011), the Court affirmed mortgage fraud convictions of a defendant tried separately from accomplices in U.S. v. Hill.

The Court found no violation of Graham’s rights, when Graham, having repeatedly asked to proceed pro se, requested to be represented by counsel on the first day of trial, and was not granted a continuance to allow counsel to prepare. The Court also rejected Graham’s argument that he was not given time to hire competent counsel, pointing out that he had a year-and-a-half to decide to hire any lawyer he chose, and it was his own fault if he failed to do so. The Court found that Graham intentionally created his situation, and said it would not permit Graham to “game the system.”

The Court also rejected the argument that Graham’s due process rights were violated when he appeared at trial dressed in a prison orange suit. Graham had told the court that he was obtaining street clothing, and then failed to do so – and had no proposal for obtaining street clothing without delaying the trial. Moreover, during opening argument, Graham’s counsel “adeptly managed to use the orange suit for strategic advantage.”

Finally, the Court rejected a challenge to the opinion testimony of a government witness, who testified, as a lay witness, about his personal knowledge of mortgage fraud. The Court held that this testimony was admissible because the government established that this witness “had personal knowledge based on his participation in fraudulent real estate closings.”

Hill: Mortgage fraud convictions affirmed; Kastigar hearing required

2011-06-17T11:56:00.001-04:00

In U.S. v. Hill, No. 07-14602 (June 14, 2011), in a 163-page opinion, the Court affirmed mortgage fraud convictions and sentences.

The Court held that it was not error to deny a severance on the ground that the district court limited the 18 defendants to a total of 16 peremptory challenges, fewer than they each would have had if tried separately. The Court noted that 16 is more than the 10 peremptory challenges allotted to a single defendant. The Court also rejected the argument that a defendant’s trial should have been severed because he was charged in only a few counts.

The Court found no error in jury selection in the failure to ask the venire whether they knew all of the witnesses who would testify at trial, because the one juror who, as it turned out, did know a witness, was an alternate juror who did not participate in deliberations.

The Court found no prima facie evidence to support a Batson challenge to the prosecution’s use of peremptory strikes to eliminate potential black jurors. The Court noted that the government only used 64% of its peremptory strikes to eliminate black venirepersons, could have excluded five more blacks than it did, and there were nine blacks left to serve on the jury. In addition, in a mortgage fraud case, “the only relevant color is the color of money, and that shade of green is race neutral.” Moreover, most of the defendants, and their lawyers, were white.

The Court rejected the argument that FRE 701 was violated by the admission of testimony of bank officials that they would not have approved loans if misrepresentations in the loan applications would have been disclosed to them. The Court noted that the topic was within the experience of the bank officers, and it did not require expert testimony to establish “that lending institutions would be reluctant to approve a loan application if they it contained false statements about material facts.”

The Court found no error in the district court’s statement that unless the defense agreed to “reasonable stipulations in order to expedite the trial proceedings,” the court would consider this in future sentencing proceedings. The Court noted that it is permissible to give a defendant a “carrot” in exchange for a guilty plea, and found that the district court had not stated at sentencing that it was imposing a longer sentence on a particular defendant because he had not entered into some stipulations.

The Court found no reversible error in the district court’s refusal to give a “good faith defense” jury instruction regarding certain charges. The Court found that the instructions requiring the jury to find that the defendants “wilfully” violated the law required the jury to rule out the possibility that the defendants actually harbored a good faith belief in the legitimacy of their scheme.

The Court rejected a challenge to the giving of a “deliberate ignorance” jury instruction, noting that even if the evidence was insufficient to support this instruction, the evidence of the defendants’ actual knowledge made the error harmless.

The Court rejected defendants’ challenges to the sufficiency of the evidence, including an appraiser’s argument based in part on the fact that the person under whose supervision she was working was not charged with any crime: “The law accommodates imperfection and is home to the idea that it is better to have some justice than none.”

The Court rejected a Double Jeopardy challenge to two convictions based on the fact that the trial court granted Rule 29 motions of acquittal orally from the bench, and then reversed itself before the conclusion of the lengthy Rule 29 hearing, and before the defense opened its case. The Court distinguished Smith v. Massachusetts, 543 U.S. 462 (2005), on the ground that in Smith the trial court reversed its judgment of acquittal after the defense had put on evidence, and after it rested its case.

Turning to one defendant’s Kastigar challenge to the government’s use of evidence against him that he proffered during immunized plea negotiations, despite a proffer agreement that, the Court found, precluded such use, the Court found that the trial court erred in failing to hold an evidentiary hearing. The Court noted that the government should have been required to prove that all of the evidence it introduced at trial – not just the evidence the defendants objected to – was derived from a source independent from the testimony that was compelled under a grant of immunity. The trial court also erred in only giving the defendant 30 minutes to review the government’s “document dump.” In addition, a prosecutor’s admission that the government “used” the defendant’s information “for leads and so forth” indicated that, unless this prosecutor testified at a hearing and could “explain” that admission, the government could not prove that it made no derivative use of the defendant’s information.

Turning to sentencing, the Court rejected the argument that sentences were procedurally unreasonable because the district court’s statements showed that it was “slavishly” adhering to the Guidelines. The Court did not so construe the district court’s remarks at sentencing.

The Court also rejected substantive reasonableness challenges to the sentences, including the sentence of 336 months imposed on Hill, noting his leadership role in a “massive” conspiracy involving $110 million of fraudulent loans.

James: Substantial Compliance with 851(b) suffices

2011-06-14T14:43:00.000-04:00

In U.S. v. James, No 10-10399 (June 9, 2011), the Court rejected a challenge to a “reasonable doubt” instruction where defense counsel had “invited” the error by submitting the very instruction he now challenged. Moreover, the trial court’s instruction that reasonable doubt need not exclude all “possible” doubt was consistent with the Eleventh Circuit pattern jury instructions.

The Court also rejected James’ challenge to the failure to comply with the procedures of 21 U.S.C. § 851(b), which require the district court to specifically ask the defendant whether he affirmed or denied the past convictions on which the government relied to enhance his sentence.
The Court recognized dicta in prior cases suggesting that “substantial compliance” with § 851(b) was insufficient. However, the Court found that these precedents were not binding, and other caselaw indicated that an omission can be harmless.

James had notice of the government’s intent to rely on the prior convictions. James never objected to the PSI’s descriptions of his prior convictions or to the enhancement of his sentence based on those convictions. Moreover, the district court at sentencing discussed the prior convictions with James and his counsel and gave them ample opportunity to object. Any error, therefore, was harmless.

Duke v. Allen: Not Commenting on Defendant's Failure to Tesify

2011-05-27T16:25:00.001-04:00

In Duke v. Allen, No. 09-16011 (May 26, 2011) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate.

During the prosecution’s closing argument, defense counsel objected to an apparent reference to the defendant’s failure to testify, and asked the trial court to note that the prosecutor was pointing at the defendant when he made the statement. The trial court, however, did not so note. The Court found that defense counsel therefore failed to preserve a record adequate to allow a reviewing court to review the claimed gesture by the prosecutor. Moreover, the “he” whom the prosecutor may have been commenting on might not have been the defendant, but the blood of a victim. [In dissent, Judge Wilson argued that “he” referred to the defendant, and the prosecution was therefore improperly commenting on the defendant’s failure to testify.]

Pietri: Failure to Present Metabolic Intoxication Defense not Ineffective

2011-05-27T15:06:00.001-04:00

In Pietri v. Florida Dep’t of Corrections, No. 09-11750 (May 25, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1988 murder.

The Court rejected the argument that counsel were ineffective for failing to put on an “metabolic intoxication” defense. The Court noted that Pietri did not show that he was intoxicated at the time of the murder, and that “metabolic intoxication” was not a cognizable under Florida law at the time of Pietri’s trial.

The Court also rejected the argument that counsel were ineffective at the penalty phase for failing to present mitigating evidence. The Court found that trial counsel strategically decided not to present some of the mental health experts they consulted.

Friske: Insufficient Evidence of Obstruction "Nexus"

2011-05-27T15:03:00.000-04:00

In U.S. v. Friske, No. 09-14915 (May 18, 2011), the Court reversed a conviction for attempting to obstruct an official proceeding by attempting to dispose of and hide assets involved in a forfeiture proceeding, in violation of 18 U.S.C. § 1512(c)(2). The Court found that the evidence was insufficient.

The evidence showed that Friske “was certainly acting suspiciously” in his attempts to recover sealed PVC pipes from under the pool deck of a person indicted for marihuana production. However, the offense required proof of a “nexus” between a person’s actions and the judicial proceedings he was attempting to obstruct. Here, no evidence showed that Friske was aware of, or could have foreseen, the forfeiture proceeding at issue. Speculation that Friske knew his actions would obstruct the forfeiture proceeding could not suffice to sustain his conviction.

Gilbert: Habeas unavailable to correct career offender sentence

2011-05-27T15:00:00.002-04:00

In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.

At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.

The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”

Martikainen: No Fleeing Law Enforcement Enhancement When Defendant was Unaware of Pursuit

2011-05-12T12:19:00.000-04:00

In U.S. v. Martikainen, No. 10-13337 (May 10, 2011), the Court reversed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly endangering another in the course of fleeing from a law enforcement officer.

After a divorce and a visitation rights order, Martikainen absconded with his son by getting on a sailboat, and sailing into the Gulf of Mexico, where his sailboat was located and ultimately boarded by the Coast Guard. Martikainen cooperated with the boarding agents.

The Court noted that § 3C1.2 does not apply when there is no officer around. Here, law enforcement officers were tracking Martikainen’s sailboat but Martikainen was not fleeing any particular law enforcement officer, and was unaware of the Coast Guard pursuit until it was over, at which point he cooperated.

The sentencing court’s imposition of the § 3C1.2 enhancement was not harmless error, because the court stated that it was sentencing Martikainen in the middle of the guideline range, and this sentence exceeded the applicable range without the enhancement.

Siegelman: Affirming Most Convictions of Former Alabama Governor

2011-05-11T12:43:00.000-04:00

In U.S. v. Siegelman, No. 09-13163 (May 10, 2011), on remand from the Supreme Court, the Court, in a 65-page opinion, affirmed some convictions and reversed others, in a case involving bribery and fraud charges against the former Governor of Alabama.

The Court affirmed convictions for violating 18 U.S.C. § 666(a)(1)(B), the federal bribery statute. The Court rejected the argument that the jury should have been instructed that bribery only occurs when payments are made in exchange for an “express” quid pro quo agreement. The Court found that this instruction would allow defendants to escape bribery liability by “knowing winks and nods.”

Turning to the honest services fraud convictions, the Court found that these convictions were unaffected by the Supreme Court recent decision in Skilling requiring a quid pro quo, because the offenses already charged a quid pro quo, and the jury were so instructed.

The Court found insufficient evidence to support Siegelman’s conviction of self-dealing in connection with the conduct of co-defendant Scrushy on an Alabama Board. The Court found that Siegelman had no awareness of Scrushy’s self-dealing. The Court also found insufficient evidence to support Scrushy’s self-dealing convictions. Post-Skilling, these convictions required a showing that Scrushy bribed someone, but there was insufficient evidence of such a bribe.

The Court affirmed a conviction of Siegelman for obstruction of justice, noting evidence showing that he tried to cover-up his receipt moneys through a false motorcycle transaction. The Court noted the jury’s split verdict on two obstruction counts, indicating that the jurors had carefully drawn inferences from circumstantial evidence.

The Court agreed with the district court’s finding that while the jury was exposed to extrinsic evidence, this exposure was harmless.

The Court rejected the argument that there were premature jury deliberations, as evidenced by an exchange of emails among jurors. The Court noted that Fed. R. Evid. 606(b) precludes inquiry of an individual juror into the validity of a verdict. Thus, although the emails would have been juror misconduct, the trial court was precluded from directly inquiring by interrogating jurors. In view of the length of deliberations, and the split verdict, the Court found no reversible error.

Finally, the Court found no error in the district court’s upward sentencing departure based on the loss of confidence suffered by the people of the state of Alabama in the integrity of its elected officials.

Lanzon: Attempt suffices to entice minor

2011-05-05T13:25:00.001-04:00

In U.S. v. Lanzon, No. 09-14535 (May 4, 2011), the Court affirmed a conviction for attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).

The Court rejected Lanzon’s argument that he could not be convicted of attempt, because § 2422(b) required a State predicate crime, and his predicate crime was a Florida statute that required a completed sex offense, not just an attempt. The Court noted that the federal statute merely required an “attempt, and federal, not state, law governed this element of the offense. Moreover, the facts were sufficient to show an attempt: Lanzon conducted sexually explicit online conversations regarding a 14-year old, drove several miles to an arranged meeting place, and carried condoms and mint lubricant in his truck.

The Court also rejected Lanzon’s Fourth Amendment challenge to the warrantless seizure of materials from his truck, after his arrest. The Court found that the police had probable cause to believe the truck contained evidence of a crime.

The Court rejected Lanzon’s challenge to the police’s failure to preserve computer evidence of his communications with undercover officers. The Court noted that Lanzon failed to show “bad faith” on the part of the detective who transferred the instant message conversations to Word documents. The Court also rejected Lanzon’s challenge to the authentication of the messages, crediting the detective’s testimony that he participated in the online chats, and accurately copied the transcripts of the conversations. Moreover, the use of copied transcripts did not violate the best evidence rule, because the originals were not destroyed in bad faith. Finally, the Court found that the district court did not abuse its discretion in declining to give a “spoliation of evidence” jury instruction. Again, the Court noted the absence of bad faith in the detective’s actions.

Proch: Escape from Jail Qualifies under ACCA

2011-04-27T13:49:00.000-04:00

In U.S. v. Proch, No. 09-15181 (April 26, 2011), the Court held that Proch’s prior two burglaries and escape convictions were separate crimes for purposes of qualifying as “violent felonies” for purposes of the Armed Career Criminal Act (“ACCA’). The Court found that the two burglaries were of two businesses located on the same commercial boulevard but separated by a side street and parking lots. The separate locations suggested two separate criminal episodes. The escape was also a separate crime, as it occurred either at the jail or while Proch was being transported to the jail – at a time when the burglaries were complete.

The Court held that the escape was a “violent felony.” Distinguishing the failure to report offense at issue in the Supreme Court’s Chambers decision as involving “inaction,” the Court noted that the subsections of the Florida escape statute at issue were escape from jail, or escape from custody while being transported to or from jail. The Court found that such escapes “pose the same degree of risk” and are “similar in kind” to the enumerated felonies listed in ACCA’s residual clause. The Court noted that one who escapes from prison “is no doubt aware that armed law enforcement will seek him out, potentially ending in a violent confrontation.” Escapes will “almost always involve the police attempting to apprehend the escapee” and are likely to cause “an eruption of violence” upon discovery. An escape involves “a choice that will almost certainly be responded to with force, and potentially violent force, by the police.”

Cave: Different Defense would not have changed the outcome

2011-04-22T17:15:00.000-04:00

In Cave v. Sec. Dep’t of Corrections, No. 09-15602 (April 12, 2010), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.

Declining to decide whether the deference owed to the Florida state courts was governed by an “unreasonableness” standard or a “clear and convincing evidence” standard, the Court found no merit in Cave’s ineffective assistance of counsel claims.

The Court rejected the argument that counsel was ineffective because he labored under the mistaken impression that a death sentence could not be imposed if the State relied only on circumstantial evidence. The Court noted that Cave failed to show that he would have put on a different defense that would have changed the outcome. Moreover, defense counsel decided not to put on a mental health mitigation defense because the risks outweighed the benefits.

The Court also rejected the argument that defense counsel was ineffective for pursuing a defense based on Cave’s lack of criminal history, because it opened the door for the State to ask about Cave’s arrest for rape. The Court found the defense not unreasonable, because it was consistent with an overall theory that Cave had “nothing to hide.”

Recognizing that it presented a closer question, the Court found that defense counsel was not ineffective for failing to object when the prosecution elicited, on cross-examination, Cave’s testimony that his prior arrest was for rape. The Court deferred to the finding that even if deficient, the failure to object did not sufficiently prejudice Cave’s defense to warrant habeas relief.

Pruitt: Viewing Child Porn Images Suffices for Knowing Receipt

2011-04-21T09:18:00.001-04:00

In U.S. v. Pruitt, No 10-10829 (April 13, 2011), the Court held that, to violate the prohibition against knowing receipt on computers of child pornography under 18 U.S.C. § 2252A(a)(2), it suffices for a defendant to knowingly seek out and view child pornography images on a computer. The Court also held that knowing receipt can be inferred from the existence of 70 such images in the defendant’s computer’s “cache” and of 200 such images in the computer’s “unallocated space,” as well as evidence of internet searches with search terms such as “nude little boy.”

Turner: Death Row Inmate Not Mentally Retarded

2011-04-06T17:05:00.000-04:00

In In re Turner, No. 11-11037 (April 5, 2011), the Court held that a Florida inmate, on death row for a 1985 murder conviction, failed to establish that he was eligible for a second or successive habeas petition, because he failed to establish that he was ineligible for the death penalty on account of his mental retardation. The Court agreed that based on the Supreme Court’s decision in Atkins, Turner would be eligible for a second or successive petition if he could demonstrate that he was ineligible for the death penalty on account of Atkins’ holding that mentally retarded offenders should not be executed. However, there was no reasonable likelihood that Turner was mentally retarded. The Court cited tests showing “average intelligence,” his attendance at junior college, and his stable job history.

Pantle: No Plain Error in Counting Prior Convictions

2011-04-05T16:04:00.002-04:00

In U.S. v. Pantle, No. 09-13728 (April 4, 2011), the Court (Carnes, Pryor, Seitz) held that it was not plain error to erroneously count two prior convictions as “violent felonies” for purposes of a Guidelines sentence enhancement, because the district court indicated at sentencing that even though it was imposing the statutory maximum sentence, the sentence was not reasonable, i.e., not severe enough. At sentencing the district court counted Pantle’s prior Florida battery conviction, and his prior Alabama conviction for first degree assault, as violent felonies. Pantle did not object to these determinations. On appeal, he argued that these prior convictions should not have counted for Guideline enhancement purposes. Without reaching the merits of Pantle’s arguments, the Court held that no substantive rights were violated. The district court imposed the statutory maximum sentence, well below the Guideline range. The district court indicated at sentencing that it did not believe this sentence was severe enough. Therefore, even if Pantle prevailed on his challenge to the two prior convictions, he could not carry his burden of showing that his substantial rights were affected, because he could not show a reasonable probability that the district court would have imposed a lower sentence.

Wetherald: Ex Post Facto Clause, Post-Booker, Applies to Guidelines

2011-03-29T14:54:00.001-04:00

In U.S. v. Wetherald, No. 09-11687 (March 28, 2011), affirming multiple fraud convictions, the Court held that even though the Guidelines, post-Booker, are not mandatory, the Ex Post Facto Clause still requires a district court not to apply a harsher Guideline that took effect after the defendant’s conduct, unless the district court a sentencing makes clear that it does not feel bound by the more recent, harsher Guidelines. Here, the district court stated that it would impose a sentence below the advisory guideline range. Moreover, the district court in fact did impose significantly lower sentences than the guideline range. The defendants could only offer speculation that the district court’s sentences were affected by the more recent Guidelines. Thus, no Ex Post Facto violation occurred. The Court also rejected the argument that the fraud offense of convictions involved partnerships, not securities. The Court pointed out that the investors had no say in the decisions of the fraudulent entities at issue.

Beasley: SORNA Criminalizes Non-Registration Only After Travel

2011-03-29T13:50:00.002-04:00

In U.S. v. Beasley, No. 09-11528 (March 28, 2011), on remand from the United States Supreme Court, the Court vacated a conviction of a defendant convicted of failing to register as required by the Sex Offender Registration and Notification Act. The Court noted that the Supreme Court’s decision in Carr v. U.S. held that a defendant only violates SORNA registration requirements if, after becoming subject to the registration requirements, he thereafter travels, and then fails to register. Carr’s holding reversed the Eleventh Circuit’s dedision U.S. v. Dumont, to the extent Dumont suggested that the registration elements do not have to be met in sequence. Here, Beasley traveled in interstate commerce before SORNA became applicable to him. Beasley therefore did not violate SORNA’s registration requirements.

Valarezo-Orobio: Scutting of vessel was "reasonably foreseeable"

2011-03-23T16:46:00.000-04:00

In U.S. v. Valarezo-Orobio, No. 10-11222 (March 23, 2011), the Court upheld the imposition of an eight-level Guideline enhancement on a defendant convicted of operating a semi-submersible vessel in violation of 18 U.S.C. § 2285. The enhancement applies when the offense involves “the sinking of the vessel.” Valarezo-Orobio claimed that the sinking of the vessel was not reasonably foreseeable to him, and was done by his co-defendants.

Rejecting this argument, the Court noted that it is “well-known that semi-submersible vessels are frequently scuttled when confronted by authorities.” Moreover, “the overall speed with which the scuttling of the vessel occurred further supports the inference that the entire crew was aware of a standing plan to sink the vessel if faced with apprehension by authorities.”

Dean: Child Pornography Statute Not Overbroad

2011-03-17T16:47:00.002-04:00

In U.S. v. Dean, No. 09-16133 (March 16, 2011), the Court rejected challenges to the constitutionality of a statute that makes it unlawful to produce child pornography, 18 U.S.C. § 1466A(a)(2).

Dean relied on the First Amendment “overbreadth” doctrine. The Court noted that a statute will be struck down as overbroad only if the overbreadth is “substantial” relative to its plainly legitimate sweep. Here, while the statute criminalizes some speech that is not child pornography, for example, an “explicit film version of the novel Lolita,” the overbreadth is not “substantial” in relation to the statute’s legitimate reach. The Court noted that the statute requires a showing that the activity lacks “serious literary, artistic, political or scientific value.” Moreover, the materials that would not be not be “patently offensive,” and therefore deserving of First Amendment protection, would not be substantial in relation to materials that would be “patently offensive.” The Court distinguished Ashcroft v. Free Speech Coalition, because the statute at issue in that case had no exception for materials that were non-obscene by reason of their serious literary, artistic, political, or scientific value.

The Court rejected the argument that the statute was not narrowly tailored because the “knowingly” mens rea only referenced the verbs in the statute, not the characteristics of the image that make it unlawful. The Court held that the word “knowingly” refers to the image characteristics listed in the statute.

Turning to the sentence, the Court noted the authorities, including a paper by federal public defender Troy Stabenow, which argue that the Guidelines for child-pornography offenses are overly severe as applied to “the typical downloader of child pornography.” The Court noted that Dean was not a typical downloader, having sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films.

Jordan: No selective prosecution where defendant did not rely on evidence regarding similarly-situated defendants

2011-03-17T15:21:00.002-04:00

In U.S. v. Jordan, No. 10-11534 (March 16, 2011), the Court affirmed a felon in possession of a firearm conviction.

The Court rejected Jordan’s Fourth Amendment challenge to his seizure. The Court noted that Jordan’s encounter with police occurred in an “area known for crime.” Jordan suspiciously became defensive when confronted about walking in the middle of the street, belligerently yelling that he had done nothing wrong. One police officer saw a gun-shaped bulge in Jordan’s pocket. Jordan fled, and was then chased and seized. His seizure in these circumstances did not violate the Fourth Amendment.

The Court rejected Jordan’s argument that his prosecution as an armed career criminal was “selective” and therefore unconstitutional. Jordan pointed out that African-Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, even though they account for significantly less than this number in the population of convicted felons who carry firearms. The Court noted that Jordan did not include the criminal histories of the other defendants, and therefore failed to establish how “similarly-situated” defendants were affected.

Finally, citing binding precedent, the Court rejected Jordan’s claim that 18 U.S.C. § 922(g)(1) exceeded Congress’ power under the Commerce Clause.

Gamory: Life Sentenced for Drug Dealer

2011-03-14T16:45:00.000-04:00

In U.S. v. Gamory, No. 09-13929 (March 11, 2011), the Court affirmed drug trafficking and money laundering convictions, and a sentence of life imprisonment.

The Court rejected Gamory’s argument that he was wrongly denied a Franks hearing regarding the falsity of an affidavit that supported an application for a search warrant. The Court explained that even if the statement in the affidavit was false, there other evidence that supported probable cause for the warrant.

Reviewing the issue for “plain error,” the Court rejected the challenge to the district court’s admission of a rap video during the trial. The Court recognized that it was error to admit the video in evidence, because the lyrics contained violence and profanity, and was not clearly probative of Gamory’s guilt. Moreover, a reference to “hush money” in the video was hearsay, because the government claimed that it was introduced for its truth, i.e. that the “hush money” evidenced that Gamory was a drug dealer. But the error in admitting the video was harmless, because of other evidence, including testimony from several of Gamory’s co-conspirators, corroborated by surveillance, and drug ledgers.

The Court rejected Gamory’s Batson challenge to jury selection, finding that the prosecutor gave race-neutral reasons (e.g. one juror had difficulty reading) that the defendant failed to rebut.

Jackson: Rule 32 does not apply to revocation hearings

2011-03-11T15:30:00.000-05:00

In U.S. v. Jackson, No. 10-13019 (Feb. 24, 2011), the Court affirmed a 21-month sentence imposed on a revocation of supervised release.

The Court held that Fed. R. Crim. P. 32(i)(1)(A), which requires a district court to verify at sentencing that the defendant and the defendant’s attorney have read and discussed the presentence report, does not apply to probation office reports prepared for a revocation hearing. Therefore, the district court’s failure to so verify during Jackson’s revocation hearing was not in error.

The Court rejected Jackson’s substantive reasonableness challenge to the length of his sentence, noting that he had not shown how a lesser sentence would help his “anger management problem.”

Schmitz: Error to ask "Were-they-lying" questions

2011-03-08T10:40:00.001-05:00

In U.S. v. Schmitz, No. 09-14452 (March 4, 2011), the Court reversed convictions for theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), but affirmed mail fraud convictions obtained against an Alabama state legislator who collected $177,000 in salary for a federal program but did little or no work.

Reviewing the issue for plain error, the Court found that it was “error” for the prosecution to repeatedly ask the defendant, on cross-examination, whether prosecution witnesses were “lying” when they testified to matters inconsistently with the defendant’s version of events. The Court held that “were-they-lying?” questions are improper for four reasons.

First, “were-they-lying” questions are not permitted by the Federal Rules of Evidence. They ask a witness to testify about matters beyond the witness’ personal knowledge.

Second, “were-they-lying” questions usurp the jury’s role as the sole maker of credibility determinations.

Third, “were-they-lying” questions put the defendant in a no-win situation of either accusing another witness of lying, or undermining his own version of events.

Fourth, the predominant purpose of the questions is to “make the defendant look bad.”

The Court recognized that in some circumstances a “were-they-lying” question might be appropriate, for example, when the defendant opened the door to such a question by testifying on direct about the truthfulness of another witness.

The error in Schmitz’ case was not “plain” because this was a matter of first impression in the Eleventh Circuit.

Turning to the indictment, the Court held that the counts charging § 666 thefts should have been dismissed, because the government neglected to allege any facts supporting these charges. The Court rejected the argument that the facts alleged in the mail fraud counts could be incorporated into the § 666 counts. The Court noted that each count of an indictment is treated independently, unless it incorporates another count by express reference, which the indictment here failed to do.

The Court found sufficient evidence to support the mail fraud counts, noting that the jury could reasonably infer that three letters Schmitz mailed were in furtherance of her fraudulent scheme to obtain pay for a job at which she did nothing.

Rose: Unpresented mitigation evidence not sufficient for habeas relief

2011-03-07T15:46:00.002-05:00

In Rose v. McNeil, No. 10-11848 (March 4, 2011), the Court denied habeas relief to a Florida death row inmate sentenced to death for a 1982 murder, rejecting an argument that defense counsel was ineffective for failing to investigate and present mitigation evidence at the penalty phase of Rose’s trial.

The Court found it unnecessary to address counsel’s performance, because the ineffectiveness claim could be disposed by examining whether Rose suffered any “prejudice” as a result of the failure to introduce certain mitigation evidence.

The Court noted that much of the mitigation evidence Rose argued should have been presented at his trial would have been duplicative of evidence that was presented.

The non-duplicative evidence was “weak.” For example, the evidence of organic brain damage showed “minimal” damage. Evidence of Rose’s childhood was “double-edged” as it would have brought out Rose’s “violent” past.

In sum, the unpresented mitigation evidence did not undermine the Court’s confidence in the outcome.

Almanzar: District Court Usurped Role of Jury

2011-03-04T15:37:00.001-05:00

In U.S. v. Almanzar, No. 10-11481 (March 4, 2011),the Court found that the district court usurped the role of the jury by granting a motion for a judgment of acquittal, after the jury gave a guilty verdict that convicted a defendant of methamphetamine trafficking.

The case involved a woman, Almanzar, who was stopped with her brother, an illegal immigrant, in a truck which contained sealed packages containing methamphetamine. The district court granted a judgment of acquittal based in part on its view that a Hispanic woman would trust blindly her male sibling. But that information was never presented to the jury. Moreover, the jury weighed the evidence, and made the credibility determinations. Sufficient evidence was presented to support the conviction.

Naranjo: Sufficient Concealment for Money Laundering

2011-03-03T15:35:00.000-05:00

In U.S. v. Naranjo, No. 08-13814 (March 2, 2011), the Court affirmed concealment money laundering convictions.

The Court rejected the argument that the government failed to prove “concealment.” The Court pointed out that while Naranjo signed the checks from his fraudulent companies, he tried to conceal his association with the bank accounts on which the checks were drawn. “It is irrelevant that Naranjo left enough evidence to allow a novice investigator to trace these cash withdrawals to Naranjo . . . because the statute requires only that proceeds be concealed, not that they be concealed well.” The Court also noted that large cash withdrawals are more difficult to trace than funds transferred between accounts.

The Court dismissed as “at best, speculative” Naranjo’s claim that a state report on his companies was exculpatory and therefore should have been turned over as Brady material. The Court noted that Brady does not require federal prosecutors to disclose Brady material possessed by state investigators.

The Court also rejected Naranjo’s Due Process and Confrontation Clause challenge to the admission of summary chart evidence. The Court noted that summary charts are admissible where (as here) the supporting evidence was previously presented to the jury, the court has made it clear that the jury decides what weight to give the summary, and the defense has an opportunity to cross-examine a witness concerning any disputed issue. The Confrontation Clause challenge failed because the data summarized was admissible under the business records exception to hearsay, and was not subject to exclusion under the Confrontation Clause.

San Martin: Two week lateness bars death row inmate's petition

2011-02-24T14:00:00.001-05:00

In San Martin v. McNeil, No. 09-14311 (Feb. 23, 2011), the Court rejected as untimely the federal habeas petition filed by a Florida inmate sentenced to death for a 1991 murder.

San Martin filed his federal habeas petition two weeks after the one-year deadline of AEPDA. He argued that the limitations period should be equitably tolled, because of a two-week delay in his receipt of the decision of the United States Supreme Court that started the period running. Rejecting this argument, the Court noted that San Martin waited 349 days after receipt of the Supreme Court order before filing his state post-conviction claim. The Court also noted that, to invoke equitable tolling, a petitioner must show diligent attempts to ascertain the status of his case – which San Martin failed to do.

Julian: 924(j) does not require consecutive sentences

2011-02-24T12:06:00.000-05:00

In U.S. v. Julian, No. 09-13673 (Feb. 22, 2011), the Court vacated a sentence and remanded for resentencing, because the district court erroneously concluded that it was required by statute to impose consecutive sentences, and lacked discretion to impose concurrent sentences.

Julian pled guilty of several offenses, including a violation of 18 U.S.C. § 924(j), which makes it a crime for a person, in the course of a violation of 18 U.S.C. § 924(c) (use of a firearm during a crime of violence or a drug trafficking offense), to cause the death of a person. At sentencing, the district court concluded that § 924(c)(1)(D)(ii) required it to impose a consecutive sentence of life for the § 924(j) violation. Reversing, the Court held that the district court could impose a concurrent punishment for the § 924(k) violation.

The Court noted that the language of § 924(c) with regard to consecutive sentences referred to “this subsection,” i.e., 924(c), not 924(j). Further, the placement of the “cause of death” provision in a separate subsection of the statute indicated that it was a separate offense, not a sentencing enhancement. Further, the considerable increase in punishment for causing the death of a person indicated that the provision created a separate offense. In addition, the government itself treated causing death as something it had to prove to obtain a conviction, because this fact increased the statutory maximum, thus confirming that the provision was more than a sentencing enhancement. The Court recognized conflict with two other Circuits, but found those opinions unpersuasive.

Lockley: Florida "Attempted Robbery" is "Crime of Violence"

2011-02-16T12:22:00.001-05:00

In U.S. v. Lockley, No. 09-15728 (Feb. 11, 2011), the Court held that a prior conviction for “attempted robbery,” in violation of Fla. Stat. §§ 812.13(1) and 777.04(1) qualified as “crime of violence” for purposes of the career offender Guideline.

The Court noted that the career offender guideline expressly includes “robbery,” which refers to “generic” forms of robbery. The Court found that Florida’s “attempted robbery” offense is a generic form of robbery. The statute requires that a defendant take the money or property of another, with the intent to permanently deprive the person of it, using force, violence, or threats of force. The Court found that the “intimidation” element of the statute was generic.

The Court noted that Florida’s attempt statute, which requires that a “substantial step” be taken toward commission of the offense, falls within the generic meaning of “attempt” in the Guidelines.

The Court further noted that “attempted robbery” would also qualify under the “residual clause” of the career offender Guideline. The Court noted that attempted robbery is similar in degree to the offenses enumerated in the residual clause. Robbery is purposeful, and it is a potentially aggressive and violent act. The Court noted the difference between “robbery” and Florida’s lesser offense of “robbery by sudden snatching.”

Ibarquen-Mosquera: DTVIA is Constitutional (Part 2)

2011-02-15T18:09:00.000-05:00

In U.S. v. Ibarguen-Mosquera, No. 09-14476 (Feb. 10, 2011), the Court rejected challenges to the constitutionality of the Drug Trafficking Vessel Interdiction Act (DTVIA).

The Court rejected a challenge based on international law principles, noting that these principles only apply to laws that govern the conduct of flagged vessels, whereas the DTVIA applies to stateless vessels.

The Court rejected the argument that the terms “semi-submersible vessel” and “intent to evade” were void for vagueness. The Court found that the application of both terms to defendants was clear: “Defendants traveled in a Vessel that sat very low in the water, was painted ocean-blue, and had no headlights or signals.”

The Court also rejected the argument that the conspiracy and substantive offenses were double punishment for the same offense, noting that conspiracy involves “collaboration” to violate the statute while the substantive offense does not.

The Court ruled that the statute does not require that a defendant “knowingly” navigate on the high seas. The high seas element was merely a jurisdictional element of the statute.

Saac: DTVIA is Constitutional (Part I)

2011-02-15T18:05:00.002-05:00

In U.S. v. Saac, No. 09-14204 (Feb. 9, 2011), the Court upheld the constitutionality of the Drug Trafficking Vessel Interdiction Act of 2008 (DTVIA). The defendants were convicted under the DTVIA of operating a semi-submersible vessel in international waters.

The Court rejected the argument that the defendants’ unconditional guilty pleas waived their right to challenge the constitutionality of the DTVIA on appeal. The Court ruled that the constitutionality of a criminal statute to which a defendants pleads guilty is a jurisdictional issue that a defendant does not waive upon pleading guilty.

The Court rejected the argument that the “High Seas” clause of the Constitution, which vests Congress with power to define crimes on the High Seas, requires that the crime have a connection with the United States. The Court noted that drug trafficking is condemned universally by law-abiding nations.

Turning to sentencing, the Court found that, in the absence of a promulgated Guideline at the time of sentencing with respect to submersible vessels, the district court did not err in declining to impose sentence based on the Guideline governing tunnels and subterranean passages. The district court did not abuse its discretion in finding the tunnel guideline insufficiently “analogous” for sentencing purposes.

The Court rejected the argument that a sentence was excessive because the alien-defendant would not be eligible for certain vocational programs. The Court noted that the sentence was well below the statutory maximum.

Lee: Conspiracy not "Crime of Violence"

2011-02-04T13:25:00.000-05:00

In U.S. v. Lee, No. 10-10926 (Feb. 2, 2011)

the Court held that a prior New Jersey conviction for conspiracy to commit armed robbery did not qualify as a “crime of violence” for purposes of the Guidelines career offender enhancement, but a prior New Jersey conviction for eluding police did so qualify.

The Court noted that it had previously held that a non-overt act conspiracy is not a “crime of violence” for career offender purposes. New Jersey’s statute criminalizing conspiracy to commit armed robbery did not require an overt act. It therefore did not qualify as a “crime of violence.”

As for the eluding police conviction, the Court noted that the offense involves a motorist who “knowingly” flees after receiving a signal from law enforcement, in a flight that “creates a risk of death or injury to any person.” The Court found that such a motorist poses a danger to himself, other drivers, passengers, pedestrians and law enforcement officers. The Court concluded that fleeing at high speed amounts to holding a finger on the trigger of a deadly weapon. The offense therefore qualified as a crime of violence..

Preacher: Abandonment not applicable defense to using interstate facility for murder

2011-01-28T18:26:00.002-05:00

In U.S. v. Preacher, No. 10-10492 (Jan. 28, 2011), the Court held that an abandonment defense was not available for the offense of using a facility of interstate commerce with the intent that a murder for hire be committed.

Preacher used a cell phone to contact someone with the idea of hiring someone to commit murder. Preacher later got scared and “cancelled the deal.” Nevertheless, the offense of using a facility of interstate commerce was complete. The defense of abandonment therefore was not available to Preacher. The Court affirmed his conviction.

McDaniel: Child pornography possessor proximately causes harm

2011-01-28T18:25:00.001-05:00

In U.S. v. McDaniel, No. 09-15038 (Jan. 28, 2011), the Court affirmed a judgment of restitution in favor of a victim of child pornography.

The Court noted that although the defendant did not create the child pornography in which the victim was pictured, he possessed the pornography, and was therefore part of the market that supported the creation of this pornography.

The Court noted that in order to recover restitution from a defendant, a victim must show that the defendant was the “proximate cause” of her monetary damages.

The Court found that McDaniel, though not the creator of the pornography that pictured the victim but only a possessor, nonetheless proximately caused the “slow acid drip” of trauma that exacerbated the victim’s emotional issues. The Court therefore affirmed the $12,750 restitution order.

Shannon: Purchase is not Possession

2011-01-26T17:17:00.001-05:00

In U.S. v. Shannon, No. 10-10599 (Jan. 26, 2011), the Court held that a prior conviction for the purchase of cocaine in violation of Florida law did not qualify as a “controlled substance offense” for purposes of “career offender” status under the Guidelines.

The Court noted that the Florida statute encompassed different conduct, but because the record before the district court did not indicate the statutorily prohibited act for which the defendant was convicted, the Court was required to assume that his act was the “least prohibited act,” i.e., “purchase.”

The Court rejected the government’s argument that purchase of cocaine was equivalent to “possession” of cocaine. The Court noted that the Florida statute distinguished between “purchase” and “possession.” In addition, the career offender Guideline referred to possession, not purchase.

Jerchower: Amendment 732 was Clarifying Amendment

2011-01-25T13:36:00.000-05:00

In U.S. v. Jerchower, No. 09-13795 (Jan. 25, 2011), the Court held that Amendment 732 was a “clarifying amendment” and therefore retroactively applicable.

Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.

The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.

In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.

The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.

Diaz: Involuntary Medication to Render Defendant Mentally Competent for Trial

2011-01-14T14:24:00.001-05:00

In U.S. v. Diaz, No. 09-15421 (Jan. 12, 2011), the Court affirmed a district court’s grant of permission to medicate a defendant involuntarily in order to render him mentally competent to stand trial.

After reviewing at length the expert reports regarding Diaz’s schizophrenia, and statistical studies regarding the effectiveness of medication, the Court found a “substantial likelihood that anti-psychotic medication will restore Diaz to competency,” and that this medication “is not substantially likely to cause side effects that would interfere with Diaz’s ability to assist counsel.” The Court credited expert opinions that side effects “easily can be controlled with supplemental medication.” The Court also noted that if the side effects could not be controlled, Diaz would be switched to another treatment regimen.

The Court rejected Diaz’s argument that the government made only “token” efforts to take his medication voluntarily. The Court noted that Diaz had refused medication since 2008. The Court further noted that psychotherapy is not an effective alternative to treat schizophrenia in the absence of medication, because schizophrenia is caused by a biological condition, a chemical imbalance.

Diaz: Freedom qualified as "thing of value"

2011-01-14T13:54:00.002-05:00

In U.S. v Townsend, No. 09-12 (Jan. 13, 2011), the Court affirmed convictions of a Miami-Dade County corrections officer, convicted for giving a defendant on pretrial release greater freedoms in exchange for bribes.

The Court found that giving greater freedom to a defendant on pretrial release qualified as a “thing of value of $5,000 or more” for purposes of the bribery statute, 18 U.S.C. § 666. The Court held that a thing of value can be “intangible.” Further, because the monetary value of the bribes paid to Townsend totaled $5,280, the value of this intangible (the defendant’s greater freedom) exceeded $5,000.

The Court rejected sufficiency of the evidence challenges to Townsend’ remaining convictions for obstruction of justice, finding that phone calls Townsend made to the defendant to warn him of a pending search of his home, and other evidence, proved these violations.

Ruff: Appeal Waiver is valid

2011-01-10T15:13:00.001-05:00

In U.S. v. Ruff, No. 09-16304 (Jan. 5, 2011), the Court dismissed an appeal because the defendant signed an appeal waiver in connection with his guilty plea.
The Court noted that appeal waivers are enforceable if they are knowing and voluntary. Here, Ruff understood the full significance of his appeal waiver.
The Court noted two exceptions to Ruff's appeal waiver: the imposition of a sentence above the statutory maximum, or an upward departure. Because Ruff pled guilty to, inter allia, possession of a firearm in relation to a drug trafficking crime, an offense for which the statutory maximum was life, and to possession of firearms as a convicted felon, which also carried a maximum of life because Ruff qualified as an armed career criminal, and because his sentence was 19 years, Ruff’s sentence did not exceed the statutory maximum.
The Court rejected Ruff’s argument that the erroneous imposition of a consecutive sentence resulted in an upward departure, and therefore was not subject to his appeal waiver. The Court noted that Ruff’s sentence was below the Guideline range, and therefore was not an upward departure. The Court added that Ruff’s consecutive sentence challenge was now foreclosed by the Supreme Court’s 2010 decision in Abbott v. U.S

This e-mail contains PRIVILEGED and CONFIDENTIAL information intended only for use of the addressee(s) named above. If you are not the intended recipient of this e-mail, or an authorized employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please notify us by reply e-mail. Thank you for your cooperation.

Harvey: Not Ineffective to concede client's guilt?

2011-01-10T15:09:00.001-05:00

In Harvey v. Warden, No. 08-15868 (Jan. 6, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for 1985 murders.
The Court found that Harvey’s defense counsel was not constitutionally ineffective in failing, during jury selection, to strike a juror for cause, or peremptorily, once the juror admitted that based on news accounts of the defendant’s confession she believed he was guilty. The Court noted that it would not presume that counsel failed to consult with the defendant on this point, nor that counsel was ineffective. The Court noted that counsel could reasonably have believed that in light of overwhelming evidence of guilt, the focus should be on the penalty phase, for which this juror might be reasonably receptive to arguments to spare the defendant’s life.
The Court recognized that the Supreme Court’s precedent could be read to presume prejudice when defense counsel, as Harvey’s counsel did, concedes his client’s guilt at trial without first consulting the defendant on this strategy. But the decision could also be read to make consent irrelevant. Accordingly, Harvey failed to show that the Florida Supreme Court’s application of Supreme Court caselaw was unreasonable. The Court found no actual prejudice in counsel’s tactical concession of guilt, in light of the overwhelming evidence.
The Court found that counsel’s "good person" strategy in the penalty phase was not constitutionally deficient on account of an inadequate investigation of the defendant’s past history, noting that counsel called 16 personal-history witnesses in Harvey’s defense.
Finally, the Court rejected the argument that counsel inadequately investigated Harvey’s mental history. The Court found that counsel was not unreasonable in relying on his expert’s advice that Harvey suffered from no organic brain damage. The Court noted the absence of a "smoking gun" that might have alerted counsel that his expert’s view was mistaken.

Mejia: "Conviction" under Immigration law

2011-01-05T15:37:00.002-05:00

In Mejia v. U.S. Dep’t of Homeland Security, No. 09-14273 (Jan. 4, 2011), the Court held that a prior guilty plea, followed by a finding of guilt and a sentence of time served, in Florida court, qualified as a prior “conviction” for purposes of the immigration laws. Consequently, Mejia, an alien, was ineligible from protection from removal from the United States.

The Court recognized that no formal punishment was imposed. However, a finding of guilt, coupled with a sentence for time served, qualified as a “conviction,” because these two together brought finality to the case and constituted an “adjudication.” Moreover, there was no indication that adjudication had been withheld.

The Court recognized that under Florida law, a sentence of time served is not a sentence. However, federal law, not Florida law, controlled the inquiry. Under federal law, time served qualifies as a sentence.

Gonzalez: Confrontation Clause Error Was Harmless

2011-01-04T17:08:00.000-05:00

In Gonzalez v. Sec. Fla. Dep’t of Corrections, No. 09-15599 (Jan. 3, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder.

The Court did not reach the issue whether Gonzalez’ post-collateral motion in Florida State Court was “properly filed” for purposes of tolling the federal habeas statute of limitations, and instead denied the petition on the merits.

The Court rejected the argument that the Confrontation Clause error in admitting at trial the confession of Gonzalez’ non-testifying co-defendants was not harmless error. The Court agreed with the Florida Supreme Court that in light of Gonzalez’ own confession, and other evidence, the error in admitting this evidence was harmless.

The Court also rejected the argument that the Florida state courts erroneously disallowed two of Gonzalez’ peremptory challenges. The Court noted that the Supreme Court has held that entitlement to peremptory challenges is a matter of State law, and that there is no constitutional right to peremptory challenges. Consequently, the erroneous denial of a peremptory challenge cannot establish a constitutional violation.

Nix: Resisting Arrest with Violence is "Violent Felony"

2010-12-30T13:09:00.000-05:00

In U.S. v. Nix, No. 09-15335 (Dec. 30, 2010), the Court adopted its unpublished opinion in U.S. v. Hayes, and held that a prior Florida conviction for resisting an arresting officer with violence, in violation of Fla. Stat. § 843.01, qualifies as a “violent felony” of purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Court therefore found that Nix had the requisite three prior felony convictions and affirmed the 15-year sentence.

Gowdy: Violation of federal detainer is "escape"

2010-12-28T14:07:00.001-05:00

In U.S. v. Gowdy, No. 09-15999 (Dec. 27, 2010), the Court held that, even though the defendant was never in federal prison, but only subject to a federal detainer after his federal conviction and sentencing, he could still be guilty of “escape from custody” under 18 U.S.C. § 751(a).

Gowdy was mistakenly released from State custody, at a time he was subject to a federal detainer to serve a federal sentence. Gowdy contended that his failure to turn himself in did not constitute “escape.”

The Court noted the “broad scope” of § 751(a), which reaches non-violent walkaways and failure to report for incarceration, or to return to custody. Here, Gowdy was in “constructive” federal custody by virture of a process issued under the laws of the United States by a federal district court. It did not matter that he was not “physically confined in an institution at the time of escape.”

Rodriguez: Unauthorized Access of Computer

2010-12-28T13:13:00.001-05:00

In U.S. v. Rodriguez, No. 09-15265 (Dec. 27, 2010), the Court affirmed a conviction for unauthorized accessing of a computer database, in violation of 18 U.S.C. § 1030(a)(2)(B).

Rodriguez was an employee of the Social Security Administration who made unauthorized use of Social Security computer databases to obtain personal information about persons he knew. The defendant claimed that his conduct did not violate the statute because he did not use the data for financial gain, or to commit a crime. The Court rejected the argument, pointing out that the (misdemeanor) statute criminalizes the unauthorized accessing of databases, and does not require financial gain, or commission of a crime.

Rodriguez also challenged the upward variance he received as unreasonable. The Court found that a variance was warranted by the number of victims and the extensive nature of Rodriguez’ unauthorized access.

Powell: District Court Must Hold Live Hearing to Reverse Magistrate Judge Credibility Determinations

2010-12-28T13:00:00.001-05:00

In U.S. v. Powell, No. 09-11612 (Dec. 27, 2010), the Court vacated a conviction because the district judge declined to adopt a Magistrate Judge’s report and recommendation without holding a hearing.

Powell moved to suppress statements he made following his arrest, claiming that he was not read his Miranda rights after he requested counsel. A Magistrate Judge held an evidentiary hearing. After hearing the conflicting testimony of government and defense witnesses, the Magistrate Judge credited the defense accounts, and found the government’s witnesses “unconvincing.” The Magistrate Judge recommended a ruling in favor of Powell’s motion to suppress. The government filed objections with the district court. The district court, without holding a hearing, but after listening to a recording of the hearing before the Magistrate Judge, overruled the Magistrate Judge, and denied the motion to suppress.

The Court held that when a district court squarely rejects the credibility findings of a Magistrate Judge, it must hear the disputed testimony live. The Court therefore vacated Powell’s conviction, and remanded the case. The Court noted that the district court remained free to reject the Magistrate Judge’s determinations in whole or in part after holding a new hearing.

Pilati: SORNA Registration is based on conduct

2010-12-20T16:31:00.000-05:00

In U.S. v. Pilati, No. 09-11978 (Dec. 17, 2010), the Court held that an Alabama District Attorney defendant convicted of depriving persons of their civil rights, in violation of 18 U.S.C. § 242, by fondling genetalia during searches, including a search of a minor, could be required to register as a sex offender under SORNA.

The Court first noted that because Pilati had consented to trial by jury presided over by a Magistrate Judge, after the jury convicted he waived all issues that he did not appeal to the district court pursuant to 18 U.S.C. § 3402.

With regard to the SORNA registration issue, the Court noted that the SORNA registration requirement applied based on the nature of the conduct underlying an offense, not based on whether the statute of conviction was a civil rights violation or a sex offense. Here, the unobjected-to facts were that Pilati’s conduct involved a sex offense against a minor. SORNA registration could therefore be required.

Cone: Non-parties lack standing in criminal case

2010-12-20T16:09:00.001-05:00

In U.S. v. Cone, No. 09-13824 (Dec. 17, 2010), the Court held that once the district court vacated its preliminary order of forfeiture, non-parties to the criminal proceeding lacked standing to challenge the district court’s vacatur of the order of forfeiture. The Court noted that once the district court vacated the forfeiture order, nothing remained at stake in the criminal case for the non-parties, and they therefore lacked standing. The Court therefore dismissed the appeal, for lack of jurisdiction.

Digsby: Appellate Counsel Not Ineffective

2010-12-08T14:18:00.000-05:00

In Digsby v. McNeil, No. 09-10978 (Dec. 7, 2010), the Court affirmed the denial of habeas relief to a Florida inmate who claimed that his appellate lawyer was ineffective for failing to raise a collateral estoppel claim in his state direct appeal.

At a first trial, Digsby was acquitted of aggravated battery. At a second trial involving the same incident, Digsby was convicted of unlawful firearm possession. Digsby claimed that his appellate lawyer was ineffective in failing to argue on appeal that because the jury that acquitted determined that Digsby never possessed a firearm, collateral estoppel barred his conviction for firearm possession arising out of the same incident.

The Court found, however, that while the jury that acquitted might have found that Digsby did not possess a firearm, it did not “necessarily” so find. The jury might have concluded that the firearm accidentally went off, while in Digsby’s possession, and therefore acquitted him of aggravated battery. If so, Digsby would have nonetheless possessed the firearm – and been liable for unlawful firearm possession. His appellate counsel was therefore not ineffective in failing to raise this claim on direct appeal.

Williams: "Incredible" story warrant obstruction of justice enhancement

2010-12-08T13:40:00.000-05:00

In U.S. v. Williams, No. 09-10091 (Dec. 8, 2010), the Court agreed with the government that the district court erroneously declined to impose a sentence enhancement for obstruction of justice, and erroneously granted an acceptance of responsibility sentence reduction.

The Court Williams testified at trial that he did not know that he had rammed the vehicle of U.S. Marshals who had come to arrest him on pending charge, and believed that the Marshalls were carjackers. The Court noted that the jury “for good reason” had rejected Williams’ “incredible” testimony. An obstruction of justice enhancement was therefore warranted.

The Court also ruled that Williams was not entitled to an acceptance of responsibility reduction, because he had gone to trial, put the government to its proof, and insisted he was innocent in the face of overwhelming evidence to the contrary.

Gooden: District Court Failed to give recharacterization notice

2010-12-08T13:26:00.002-05:00

In Gooden v. U.S., No. 09-10499 (Dec. 8, 2009), the Court held that the district court improperly dismissed Gooden’s motion to compel a reduction of sentence for substantial assistance. The district court had dismissed the motion on the ground that it was an untimely 28 U.S.C. § 2255 motion, and was an unauthorized “second and successive” motion. Prior to this motion, the inmate had filed a “motion to modify” his sentence, which the district court had recharacterized as a § 2255 motion. However, in so recharacterizing the inmate’s motion, the district court failed to give the inmate notice of the recharacterization and its adverse consequences on future § 2255 motions, as required by Castro v. U.S., 540 U.S. 375 (2003). Because of the district court’s initial failure to give notice of recharacterization, it could not now dismiss Gooden’s latest motion for being second or successive. The Court rejected the government’s argument that notice of recharacterization need not be given when a motion is untimely. The Court explained that future events can render a § 2255 motion timely, and that the notice is therefore necessary to alert a defendant to his options.

Puatti: Joint Penalty Phase Was Appropriate

2010-12-03T17:59:00.000-05:00

In Puiatti v. McNeil, No. 09-15514 (Nov. 29, 2010), the Court denied habeas relief to a Florida death row inmate convicted of a 1983 murder.

The Court rejected the argument that Puiatti was denied an individualized sentencing determination because the jury considered whether to impose a death sentence on him along with his co-defendant. The Court noted that Puiatti and his co-defendant presented “similar” mitigation theories. The Court added that in this case a joint penalty phase was “particularly appropriate” because the defendants committed the murder together.

Forey-Quintero: Defendant is Alien, Not a Citizen

2010-12-01T18:14:00.000-05:00

In U.S. v. Forey-Quintero, No. 09-15330 (Nov. 30, 2010), the Court affirmed a conviction for unlawful re-entry into the United States, in violation of 8 U.S.C. § 1326(a). The sole issue in the case was whether Forey-Quintero could not guilty of this offense because he previously had acquired derivative citizenship by virtue of his mother’s naturalization when he was under the age of 18. The Court found that because Forey-Quintero did not have lawful permanent resident status at the relevant time under the applicable immigration statute, he did not acquire derivative citizenship, but was an alien, and therefore was guilty of unlawful re-entry.

Turner: Affirming 300-month sentence for child pornography possession

2010-11-17T13:09:00.000-05:00

In U.S. v. Turner, No. 09-15074 (Nov. 17, 2010), the Court affirmed a 300-month sentence imposed on a defendant convicted of receiving child pornography, in violation of 18 U.S.C. 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

The Court rejected the argument that the five-level enhancement for engaging in “a pattern of activity involving the sexual abuse or exploitation of a minor” should not have applied. The Court noted that Turner molested a very small child, and was convicted of first degree sexual abuse in 1990. The Court noted that the Guideline did not require a connection between the past sexual abuse and the current offense. Here, the evidence established a pattern because Turner abused the child “numerous times.” The fact that the sexual abuse was remote in time did not preclude it from being a basis for the USSG § 2G2.2(b)(5) enhancement.

The Court also found the sentence to be substantively reasonable. The 300-month sentence was a 90-month variance above the high end of the Guidelines. The Court noted that the offenses were “extremely serious” because receiving and possessing child pornography encourages the victimization of children. But cf., e.g., U.S. v. Grober, __F.3d __ (3rd Cir. Oct. 26, 2010) (affirming downward variance to 60 months, for child pornography offender; district court reasonably concluded that 235-292 Guideline range lacked empirical justification); U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (reversing 240-month sentence for child pornography offender, because Guidelines lack empirical support).

The Court also noted that Turner “poses a more serious threat to society than many child pornography defendants given his history of actually abusing a small child and the increased recidivism of child sexual abusers.

Davis: No Authority to Issue COA

2010-11-09T17:12:00.000-05:00

In Davis v. Terry, No. 10-14534 (Nov. 5, 2010), the Court denied a request for a certificate of appealability (COA) from a district court’s denial of a request for a COA. The Court noted the case’s procedural history: after the Court had denied an application to file a second or successive habeas petition, after the Supreme Court, exercising original habeas jurisdiction over Davis’ petition in the Supreme Court, had transferred the case to district court to conduct an evidentiary hearing on Davis’ claim of innocence, and after the district court held a hearing and denied relief, Davis sought a COA to appeal the district court’s ruling. The Court held that because, after its original denial of a COA, there was no further review provided by law, it had no authority over his application.

Lambrix: Denial of Application for Second or Successive Habeas Petition

2010-10-27T16:01:00.001-04:00

In In re Lambrix, No. 10-14476 (Oct. 26, 2010), the Court denied the application of a Florida death row inmate, convicted of a murder that occurred in 1983, for leave to file a second or successive habeas corpus petition.

The Court noted that the standard for a second or successive petition was a showing that facts could not have been discovered earlier, and that, but for a constitutional error, no reasonable factfinder would find the defendant guilty. Lambrix relied on the recantation of one of the prosecution’s witnesses. The Court noted that the recantation could have been discovered earlier, and that reasonable factfinders could still have found Lambrix guilty. The Court found Lambrix’s other allegations to similarly lack merit.

Wayerski: Child Pornography Conspiracy Conviction Duplicative

2010-10-26T17:26:00.001-04:00

In U.S. v. Wayerski, No. 09-11379 (Oct. 26, 2010), the Court held that convictions of defendants for both engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g), and in a child pornography conspiracy, in violation of 18 U.S.C. § 2252A, were unduly duplicative, in violation of Double Jeopardy, but otherwise affirmed all convictions.

To avoid unconstitutional duplicativeness, a criminal conviction must involve proof of a fact that another conviction does not involve. Here, the “in concert” element of the exploitation enterprise offense involved the same proof of agreement that the conspiracy offense involved. Therefore the two convictions were duplicative. The Court therefore vacated the conspiracy convictions and remanded for resentencing.

The Court, however, rejected a vagueness challenge to the child exploitation statute. The Court noted that the statute, which criminalizes commission of several enumerated child pornography felonies, on three or more separate instances, involving more than one victim, in concert with three or more other persons, squarely applied to the defendants elaborate and secret scheme for using the internet to share images of child pornography. The Court noted that one to whose conduct a statute squarely applies may not successfully challenge it for vagueness. Thus, the Court found unpersuasive the defendants’ hypothetical that one could violate the statute in a manner of seconds by exchanging images over the internet.

Turning to sentencing, the Court rejected the argument that, because the defendants’ conduct in avoiding detection occurred before arrest, an obstruction of justice enhancement should not have been imposed. The Court pointed out that the obstruction of justice enhancement covers conduct that occurred prior to arrest, and prior to the start of an investigation.

The Court rejected one defendant’s argument that the district court erred in finding that he posed a risk to the community if released from prison, because a defense psychologist testified otherwise at sentencing. The Court noted that the district court relied on other evidence, including the defendant’s diaries, which the psychologist may not have reviewed. The Court found that the 360 and 365 months sentences imposed on two defendants were not excessive, noting the “harm caused by caused by child pornography offenses.”

Mateos: Medicare Fraud Convictions and Sentences Affirmed

2010-10-20T15:51:00.000-04:00

In U.S. v. Alvarez, No. 08-17178 (Oct. 19, 2010), the Court affirmed Medicare fraud convictions and sentences.

The Court agreed with defendant Alvarez that the district court erred when it excluded a recorded statement made by one Medicare conspirator to Alvarez that “there’s no fraud whatsoever here” – a statement that indicated that Alvarez was not privy to the scheme. The statement was not hearsay, because Alvarez did not seek to admit it for its truth, but to show that Alvarez was not aware of the fraud. It therefore did not matter whether, as the district court found, the statement did not fit within a hearsay exception, because the statement was not hearsay in the first place.

However, the error in excluding the recorded statement was harmless because the statement was effectively admitted through witness testimony.

The Court found no error in the district court’s admission of evidence that co-defendant Mateos had been married to a ringleader of the fraud. The Court did not find this evidence so “inflammatory” as to render the district court’s cautionary instruction ineffective.

Turning to sentencing, the Court found that the 30-year sentence imposed on Alvarez was not outside the range of reasonable sentences. The Court recognized the “troubling” disparity with lesser sentences imposed on more culpable co-conspirators. However, these defendants provided substantial assistance to the government. In addition, the Court found that the district court’s reasons for an upward variance were justified: Alvarez was a doctor who breached her position of trust; the fraud lasted over a period of months; Alvarez followed a lower standard of care with regard to the health of her patients; Medicare fraud was rampant in the Miami area; Alvarez “blatantly lied” during her testimony at trial and showed “no remorse.” In addition, Congress recently amended the Sentencing Guidelines for Medicare fraud, and under the new Guidelines Alvarez’ 30-year sentence fell at the high end of the Guidelines.

The Court rejected Mateos’ argument that the district court erroneously found her responsible for the entire intended loss (more than $9 million). The evidence showed that Mateos was aware of the essence of the fraud, and the district court therefore held her responsible for losses stemming from all reasonably foreseeable acts of coconspirators.

Kobal: Absence of brain damage evidence did not warrant habeas relief

2010-10-19T13:46:00.000-04:00

In Kokal v. Sec. Dep’t of Corrections, No. 08-11722 (Oct. 18, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for the 1983 murder a sailor.

The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword.

Sistrunk: Entrapment is affirmative defense to felon in possession charge

2010-10-08T15:04:00.004-04:00

In U.S. v. Sistrunk, No. 09-12798 (Oct. 7, 2010), the Court affirmed a conviction for being a felon in possession of a firearm.

Citing U.S. v. Deleveaux, the Court recognized that, like the defense of justification, the defense of entrapment can be raised in a felon-in-possession case, as an affirmative defense, to negate criminal liability even though the prosecution has proven all the elements of the offense. The district court therefore erred in ruling that this defense was not available to Sistrunk. However, the error in failing to give the instruction was harmless because the facts did not warrant the instruction: the government merely presented Sistrunk with an “attractive” opportunity to rob a stash house, but did not engage in “excessive pressure or manipulation.”

Gomes: FSA does not apply to pre-FSA case

2010-10-01T17:04:00.001-04:00

In U.S. v. Gomes, No. 10-11225 (Oct. 1, 2010) (Tjoflat, Barkett, Fay), the Court held that the district court committed no error when it imposed the then-applicable statutory mandatory minimum of 120 months on a defendant convicted of trafficking in more than 50 grams of crack cocaine. The Court found that the recently enacted Fair Sentencing Act, which increased the crack cocaine quantities required to qualify for this statutory mandatory minimum punishment, did not change the result, because the Act took effect after the defendant committed his crime, and the saving clause, 1 U.S.C. § 109, bars the Fair Sentencing Act from affecting the punishment.

Bauder: Ineffective Misadvice on civil commitment consequences

2010-09-14T14:18:00.003-04:00

In U.S v. Bauder, No. 10-10657 (Sept. 13, 2010), the district court affirmed the grant of habeas relief to a Florida inmate convicted of aggravated stalking. Prior to his plea, Bauder's state lawyer told him that he could not face involuntary civil commitment under Florida law. This was misadvice: after Bauder finished his sentence on the plea, the State moved to have him committed and he was then committed. The Court found that counsel's advice was ineffective assistance, and that it was prejudical.

Williams: gunshot in public housing project is basis to pull over quickly exiting vehicle

2010-09-14T14:12:00.001-04:00

In U.S. v. Williams, No. 10-10612 (Sept. 13, 2010), the Court held that a police officer did not violate the Fourth Amendment when he pulled over the defendant’s vehicle after it quickly pulled out of a public housing project, known to be a high crime area, from which the officer had just heard a gunshot. The district court therefore did not err in declining to suppress the firearm found in Williams’ vehicle.

The Court relied on cases in the Fifth and Tenth Circuits which held that a police officer was acting on more than a “hunch” in like circumstances. In such circumstances, an officer has a reasonable suspicion to pull over the vehicle – sufficient reason under Terry v. Ohio to withstand a Fourth Amendment challenge.