In U.S. v. Roberston, No. 06-13267 (July 27, 2007), the Court affirmed fraud convictions but reversed a portion of the restitution order.
The defendant purchased software from Novell, a software manufacturer, at discount prices, fraudulently claiming to be an education institution. He then resold the software to a Novell distributor, Network Systems, who itself was not authorized to purchase software from another firm than Novell.
The Court rejected Robertson’s challenge to the sufficiency of the evidence, pointing to the circumstantial evidence of fax transmissions.
The Court also affirmed the imposition of a sentence enhancement based on the use of "sophisticated means." The Court pointed to Robertson use of fictional entities to take advantage of discounted prices.
The Court also affirmed a restitution calculation, for payment to Novell, based on the wholesale prices of all the software Robertson purchased, minus the amount Novell obtained in a settlement of a lawsuit against Network Systems arising out of Network Systems’ sales of Robertson-supplied software. The Court noted that Robertson received a benefit when wholesale, not retail, prices were used. The Court also rejected as "baseless" the argument that the software was "unique," not "fungible" goods, for which replacement cost might be the right measure.
The Court, however, agreed with Robertson that he should not have been ordered to pay $125,000 in restitution to Network Systems. This amount represented the amount Network Systems paid Novell to settle a lawsuit brought by Novell against Network Systems for Network Systems’ unauthorized sales of Robertson-bought software. The Court found that too little was known about the nature of the lawsuit for this settlement to be deemed "reasonably foreseeable" to Robertson and thus owed in restitution.
Friday, July 27, 2007
Wednesday, July 25, 2007
Gore: Waiver of Miranda effective upon resumption of questioning
In Gore v. Sec. Dep’t of Corrections, No. 06-11522 (July 20, 2007), the Court denied habeas relief to a Florida death row inmate convicted of a 1988 murder.
Gore was first questioned by federal officials. This questioning ceased once he invoked his right to remain silent. Seven days later, questioning resumed by state officials, and Gore waived his Miranda rights. Seven hours of questioning ensued. Gore made incriminating statements during this questioning, which he then sought to suppress at trial. The Florida courts held that the statements were not obtained in violation of his rights.
On federal habeas review, the Court noted that AEDPA required it to defer to the Florida court’s determination unless it was an unreasonable application of Supreme Court caselaw. Here, Gore waived his right to silence and right to counsel before the second questioning occurred. The Court deferred to the Florida Supreme Court’s credibility determination which credited the testimony of the Florida officer who testified that Gore had not invoked his right to counsel. Further, the mere fact that counsel had been appointed in an unrelated case was not a "constructive invocation" of the right to counsel. The Court noted that the Sixth Amendment right to counsel was "offense-specific."
Gore was first questioned by federal officials. This questioning ceased once he invoked his right to remain silent. Seven days later, questioning resumed by state officials, and Gore waived his Miranda rights. Seven hours of questioning ensued. Gore made incriminating statements during this questioning, which he then sought to suppress at trial. The Florida courts held that the statements were not obtained in violation of his rights.
On federal habeas review, the Court noted that AEDPA required it to defer to the Florida court’s determination unless it was an unreasonable application of Supreme Court caselaw. Here, Gore waived his right to silence and right to counsel before the second questioning occurred. The Court deferred to the Florida Supreme Court’s credibility determination which credited the testimony of the Florida officer who testified that Gore had not invoked his right to counsel. Further, the mere fact that counsel had been appointed in an unrelated case was not a "constructive invocation" of the right to counsel. The Court noted that the Sixth Amendment right to counsel was "offense-specific."
Tuesday, July 24, 2007
Ciszkowski: Silencer did not manipulate sentence
In U.S. v. Ciszkowski, No. 06-12592 (July 20, 2007), the Court affirmed the convictions and sentence of a defendant convicted of murder for hire, in violation of 18 U.S.C. § 1958 and possession of a firearm with silencer in furtherance of a crime of violence and drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii). The murder for hire offense carried a ten-year maximum; the silencer count carried a 30-year mandatory minimum. The trial court
The Court rejected the argument that the jury should have been instructed that, for the silencer count, it had to find that the defendant had knowledge of the silencer. The Court found that this was not an element of the offense, but a sentencing factor. The Court noted that someone who violated § 924(c) had already demonstrated a "vicious will," and that there was no risk of punishing an innocent actor by applying the silencer enhancement. Further, the silencer only increased the statutory minimum, not the statutory maximum, for a § 924(c) violation.
The Court also rejected Ciszkowski’s "sentencing manipulation" challenge to the reasonableness of his sentence. The defendant claimed that he had never seen the silencer that was hidden in the suitcase that was given to him by a government informant as part of the sting murder for hire. He claimed that the silencer had been put in the suitcase only to increase the mandatory minimum to 30 years. The Court recognized that "if the government provided a undetectably silenced weapon in a circumstance where the firearm or the silencer was completely unrelated to the accompanying criminal act, we might be inclined to find improper sentencing manipulation in such a case." Here, however, because the silencer was to be used for a murder for hire, a muzzled firearm was an appropriate weapon for the government to provide.
The Court rejected the argument that the jury should have been instructed that, for the silencer count, it had to find that the defendant had knowledge of the silencer. The Court found that this was not an element of the offense, but a sentencing factor. The Court noted that someone who violated § 924(c) had already demonstrated a "vicious will," and that there was no risk of punishing an innocent actor by applying the silencer enhancement. Further, the silencer only increased the statutory minimum, not the statutory maximum, for a § 924(c) violation.
The Court also rejected Ciszkowski’s "sentencing manipulation" challenge to the reasonableness of his sentence. The defendant claimed that he had never seen the silencer that was hidden in the suitcase that was given to him by a government informant as part of the sting murder for hire. He claimed that the silencer had been put in the suitcase only to increase the mandatory minimum to 30 years. The Court recognized that "if the government provided a undetectably silenced weapon in a circumstance where the firearm or the silencer was completely unrelated to the accompanying criminal act, we might be inclined to find improper sentencing manipulation in such a case." Here, however, because the silencer was to be used for a murder for hire, a muzzled firearm was an appropriate weapon for the government to provide.
Tuesday, July 17, 2007
Campbell: Atlanta mayor not entitled to representation by convicted accomplice's counsel
In Campbell v. U.S., No. 06-13548 (July 13, 2007), the Court affirmed the conviction and 30-month sentence of a former mayor of Atlanta, Ga., convicted of tax fraud (though acquitted of all RICO and bribery charges).
The Court rejected the argument that, in violation of his right to counsel, Campbell was deprived of counsel of his choice when the trial court ruled that he could not be represented by a law partner of the lawyer who represented one of Campbell’s accomplices against criminal charges arising from the same corruption scheme. The Court noted that this accomplice refused to waive the attorney-client privilege. By disqualifying Campbell’s counsel of choice – to whom conflict was imputed by reason of his relationship to his law partner – the trial court legitimately preserved the fairness of the trial.
The Court also rejected Campbell’s challenge to his sentence, expressing surprise that Campbell believed he had been sentenced harshly when in reality the sentence reflected the district court’s decision, of "considerable leniency and restraint," to run concurrently sentences for separate counts of conviction. The Count found no undue reliance on acquitted conduct, pointing out that the sentence was within the limit authorized by the jury’s verdict. The Court also upheld the enhancement for using "sophisticated means," pointing out that Campbell hid his illegal moneys through use of "fictitious entities, corporate shells, or offshore financial accounts."
The Court also rejected a challenge to an obstruction of justice enhancement, finding no basis to overturn the district court’s credibility finding on this point.
Finally, the Court rejected Campbell’s "unreasonableness" challenge to his sentence. The Court pointed out that the 30-month sentence was far less than the statutory maximum for the sentence for which he was convicted, and even less close to the maximum for the statutes with which he was charged but acquitted. Therefore the sentence was not unreasonable, and did not reflect punishment for the acquitted counts.
The Court rejected the argument that, in violation of his right to counsel, Campbell was deprived of counsel of his choice when the trial court ruled that he could not be represented by a law partner of the lawyer who represented one of Campbell’s accomplices against criminal charges arising from the same corruption scheme. The Court noted that this accomplice refused to waive the attorney-client privilege. By disqualifying Campbell’s counsel of choice – to whom conflict was imputed by reason of his relationship to his law partner – the trial court legitimately preserved the fairness of the trial.
The Court also rejected Campbell’s challenge to his sentence, expressing surprise that Campbell believed he had been sentenced harshly when in reality the sentence reflected the district court’s decision, of "considerable leniency and restraint," to run concurrently sentences for separate counts of conviction. The Count found no undue reliance on acquitted conduct, pointing out that the sentence was within the limit authorized by the jury’s verdict. The Court also upheld the enhancement for using "sophisticated means," pointing out that Campbell hid his illegal moneys through use of "fictitious entities, corporate shells, or offshore financial accounts."
The Court also rejected a challenge to an obstruction of justice enhancement, finding no basis to overturn the district court’s credibility finding on this point.
Finally, the Court rejected Campbell’s "unreasonableness" challenge to his sentence. The Court pointed out that the 30-month sentence was far less than the statutory maximum for the sentence for which he was convicted, and even less close to the maximum for the statutes with which he was charged but acquitted. Therefore the sentence was not unreasonable, and did not reflect punishment for the acquitted counts.
Herring: Good Faith Exception applies to mistake in records of another county
In U.S. v. Herring, No. 06-10795 (July 17, 2007), the Court held that when officers in one jurisdiction check with employees of a law enforcement agency in another jurisdiction, and are – mistakenly, it turns out – told that there is an outstanding warrant for an individual, and the officers arrest the person, and a search yields contraband, the exclusionary rule does not require suppression of the evidence, because of the "good faith exception" of U.S. v. Leon, 468 U.S. 897 (1984). The mistake occurred because the agency in the other jurisdiction had failed to note in its records that the warrant had been recalled.
The Court rejected the government’s argument that the case was governed by Arizona v. Evans, 514 U.S. 1 (1995), where the good faith exception applied to a mistake by a court employee. Here the mistake was made by a law enforcement officer, and Evans did not reach such circumstances.
The Court, however, found that the policies recognized in Leon would be better served by not applying the exclusionary rule. First, the deterrent benefits of excluding the evidence would not be present. The person who mistakenly failed to record that Herring’s warrant had been recalled was "negligent." "Deterrents work best where the targeted conduct results from conscious decision making, because only if the decision maker considers the possible results of her actions can she be deterred." In addition, law enforcement agencies have inherent reasons to keep good records, which need not be supplemented by exclusionary rules. Further, no deterrent effect would be served, because officers in one jurisdiction have little concern about the prospect of frustrating prosecutions in another jurisdiction.
The Court noted that if faulty record-keeping became endemic in a particular county, officers in another county might have a "difficult time" establishing that their reliance on this county’s records was objectively reasonable.
The Court rejected the government’s argument that the case was governed by Arizona v. Evans, 514 U.S. 1 (1995), where the good faith exception applied to a mistake by a court employee. Here the mistake was made by a law enforcement officer, and Evans did not reach such circumstances.
The Court, however, found that the policies recognized in Leon would be better served by not applying the exclusionary rule. First, the deterrent benefits of excluding the evidence would not be present. The person who mistakenly failed to record that Herring’s warrant had been recalled was "negligent." "Deterrents work best where the targeted conduct results from conscious decision making, because only if the decision maker considers the possible results of her actions can she be deterred." In addition, law enforcement agencies have inherent reasons to keep good records, which need not be supplemented by exclusionary rules. Further, no deterrent effect would be served, because officers in one jurisdiction have little concern about the prospect of frustrating prosecutions in another jurisdiction.
The Court noted that if faulty record-keeping became endemic in a particular county, officers in another county might have a "difficult time" establishing that their reliance on this county’s records was objectively reasonable.
Lewis: Olano is good law in the 11th Circuit
In U.S. v. Lewis, No. 06-11876 (July 17, 2006), the Court (en banc), in order to brings its Circuit caselaw in conformity with the 14-year old Supreme Court decision in U.S. v. Olano, 507 U.S. 725 (1993), held that, for error preservation on appeal, a "waiver" is an intentional reliquishment of a known right, whereas the simple failure to assert a right, without any affirmative steps to voluntarily waive it, is a "forfeiture." A waiver abandons the right to appellate review; forfeiture is reviewable under the plain error standard of Fed. R. Crim. P. 52(b).
Turning to whether plain error occurred, the Court found no error at all. Lewis claimed that a Double Jeopardy violation occurred when, after he pled guilty to some counts of the indictment, the prosecution subjected him to a trial on a remaining count to which he had not pled guilty – and for which one count to which he had pled guilty was a lesser-included offense. Double Jeopardy protects only against successive prosecutions, not simultaneous ones. Thus, the trial of Lewis for an offense that was part of the same indictment as the charges to which he pled guilty did not violate Double Jeopardy.
Turning to whether plain error occurred, the Court found no error at all. Lewis claimed that a Double Jeopardy violation occurred when, after he pled guilty to some counts of the indictment, the prosecution subjected him to a trial on a remaining count to which he had not pled guilty – and for which one count to which he had pled guilty was a lesser-included offense. Double Jeopardy protects only against successive prosecutions, not simultaneous ones. Thus, the trial of Lewis for an offense that was part of the same indictment as the charges to which he pled guilty did not violate Double Jeopardy.
Tuesday, July 10, 2007
Walker: Batson violation remedy may be juror reinstatement
In U.S. v. Walker, No. 05-16756 (July 6, 2007), the Court affirmed convictions and sentences arising out of the prosecution of a Georgia state legislator for mail fraud.
The Court rejected the argument that the district court abused its discretion when, after the defendant exercised his peremptory challenges to eliminate four white male jurors from the venire, it granted the government’s Batson challenge, and reinstated the jurors to the jury pool. Though "somewhat troubled" by the district court’s finding that the defendant’s rationale for the strikes were "pretextual," in view of its different treatment of similarly-rationalized strikes, the court deferred to the district court’s finding of lack of genuineness, and likelihood of purposeful discrimination. The Court also deferred to the district court’s reinstatement remedy, noting the broad discretion as to the choice of remedy, and the "defensible approach" the district court took here.
The Court rejected a sufficiency of the evidence challenge to the mail fraud convictions. The Court noted that the honest services mail fraud statute is "extremely broad." Here, the evidence showed a scheme by Walker to enrich himself by using his legislative position as a bargaining tool to secure additional business for one of the businesses he owned. Walker’s own communications showed his belief that he was entitled to additional business in exchange for legislative assistance (even though, in reality, he influenced no actual legislation).
The Court also rejected Walker’s federalism arguments that a prosecution predicated on a non-criminal ethics provision – which required disclosure of business relationships - is unconstitutional, since only the state is entitled to criminalize such conduct. The Court noted that the jury was specifically instructed not to ground its verdict on state law. The jury’s verdict could have been unrelated to any state ethics requirement, but based only on a federal honest services mail fraud violation.
Turning to sentencing, the Court rejected a double counting challenge based on cumulative enhancements for abuse of trust and for a misrepresentation on behalf of a charity. The Court found that these enhancements involved different harms, to the charity, and to the charity’s donors. The Court also affirmed the supervisory role enhancement, albeit on different grounds than those stated by the district court.
The Court rejected the argument that the district court abused its discretion when, after the defendant exercised his peremptory challenges to eliminate four white male jurors from the venire, it granted the government’s Batson challenge, and reinstated the jurors to the jury pool. Though "somewhat troubled" by the district court’s finding that the defendant’s rationale for the strikes were "pretextual," in view of its different treatment of similarly-rationalized strikes, the court deferred to the district court’s finding of lack of genuineness, and likelihood of purposeful discrimination. The Court also deferred to the district court’s reinstatement remedy, noting the broad discretion as to the choice of remedy, and the "defensible approach" the district court took here.
The Court rejected a sufficiency of the evidence challenge to the mail fraud convictions. The Court noted that the honest services mail fraud statute is "extremely broad." Here, the evidence showed a scheme by Walker to enrich himself by using his legislative position as a bargaining tool to secure additional business for one of the businesses he owned. Walker’s own communications showed his belief that he was entitled to additional business in exchange for legislative assistance (even though, in reality, he influenced no actual legislation).
The Court also rejected Walker’s federalism arguments that a prosecution predicated on a non-criminal ethics provision – which required disclosure of business relationships - is unconstitutional, since only the state is entitled to criminalize such conduct. The Court noted that the jury was specifically instructed not to ground its verdict on state law. The jury’s verdict could have been unrelated to any state ethics requirement, but based only on a federal honest services mail fraud violation.
Turning to sentencing, the Court rejected a double counting challenge based on cumulative enhancements for abuse of trust and for a misrepresentation on behalf of a charity. The Court found that these enhancements involved different harms, to the charity, and to the charity’s donors. The Court also affirmed the supervisory role enhancement, albeit on different grounds than those stated by the district court.
Monday, July 09, 2007
Lozano: U.S. value ok for Latin American counterfeits
In U.S. v. Lozano, No. 06-11136 (July 9, 2007), the Court affirmed the sentences of defendants convicted of conspiracy to traffic in counterfeit goods in violation 18 U.S.C. §§ 371 and 2320(a).
At sentencing, the defendants contested the attribution of the loss amount, claiming that the correct loss computation should have reflected the value of the counterfeit items in the market in which those goods were sold, Latin America, not the retail price in the United States. The sentencing court stated that even if the loss calculation were erroneous, it would still have imposed the same 72-month sentence using its discretion under § 3553(a).
The Court found that the use of the value in the United States was not clearly erroneous.
The Court added that the sentence would still have been reasonable even if the calculation were erroneous because the variance above the otherwise applicable 21-27 month range was not unreasonable, in view of the "expansive, expensive, and extensive" nature of defendants’ scheme.
At sentencing, the defendants contested the attribution of the loss amount, claiming that the correct loss computation should have reflected the value of the counterfeit items in the market in which those goods were sold, Latin America, not the retail price in the United States. The sentencing court stated that even if the loss calculation were erroneous, it would still have imposed the same 72-month sentence using its discretion under § 3553(a).
The Court found that the use of the value in the United States was not clearly erroneous.
The Court added that the sentence would still have been reasonable even if the calculation were erroneous because the variance above the otherwise applicable 21-27 month range was not unreasonable, in view of the "expansive, expensive, and extensive" nature of defendants’ scheme.
Thursday, July 05, 2007
Williams: No Equitable Tolling for 2255 motion
In Williams v. U.S., No. 06-11415 (July 2, 2007), the Court held that, even assuming a Florida inmate’s earlier motion to correct an illegal sentence, recharacterized by the district court as a § 2255 motion, was not counted as a first habeas petition for purposes of the "second and successive" limitation of AEDPA, the inmate’s "second" petition should still be dismissed because it was barred by the statute of limitations.
The Court declined to apply the doctrine of equitable tolling. The Court noted that regardless of whether Williams viewed the dismissal of his first motion to correct sentence as foreclosing, or not foreclosing, other claims, this did not excuse his lack of diligence in filing his § 2255 motion within the limitations period. The Court noted that it had reached a similar result under similar facts in Outler v. U.S., 485 F.3d 1273 (11th Cir. 2007).
The Court declined to apply the doctrine of equitable tolling. The Court noted that regardless of whether Williams viewed the dismissal of his first motion to correct sentence as foreclosing, or not foreclosing, other claims, this did not excuse his lack of diligence in filing his § 2255 motion within the limitations period. The Court noted that it had reached a similar result under similar facts in Outler v. U.S., 485 F.3d 1273 (11th Cir. 2007).
Jennings: No habeas relief for Florida death row inmate
In Jennings v. McDonough, No. 05-16363 (July 3, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1979 murder.
The Court found that Florida courts did not misapply the Brady v. Maryland test governing the suppression of evidence. As to one piece of exculpatory evidence, the Court found that Jennings was aware of it, and it therefore was not "suppressed." As to two others, they did not create a reasonable probability of a different outcome.
The Court also rejected Jennings’ ineffectiveness claim against his counsel, finding that the failure to call more witnesses regarding his intoxicated state would not have changed the outcome of the case.
The Court further rejected the argument that the Florida Supreme Court erred when it held that an admittedly erroneous (because unduly vague) instruction on the "cruel" nature of the crime was harmless error. The Court found that the Florida Supreme Court engaged in the correct harmless error analysis. Similarly, the Court found that any error in an instruction on an "aggravator" instruction was harmless, because the facts underlying this aggravator also supported the other aggravating factor that the jury based its death verdict on.
The Court found that Florida courts did not misapply the Brady v. Maryland test governing the suppression of evidence. As to one piece of exculpatory evidence, the Court found that Jennings was aware of it, and it therefore was not "suppressed." As to two others, they did not create a reasonable probability of a different outcome.
The Court also rejected Jennings’ ineffectiveness claim against his counsel, finding that the failure to call more witnesses regarding his intoxicated state would not have changed the outcome of the case.
The Court further rejected the argument that the Florida Supreme Court erred when it held that an admittedly erroneous (because unduly vague) instruction on the "cruel" nature of the crime was harmless error. The Court found that the Florida Supreme Court engaged in the correct harmless error analysis. Similarly, the Court found that any error in an instruction on an "aggravator" instruction was harmless, because the facts underlying this aggravator also supported the other aggravating factor that the jury based its death verdict on.
Zakreswki: Fraud on the Court is basis for Rule 60(b) motion
In Zakrewski v. McDonough, 06-12804 (July 3, 2007), the Court reversed the denial of relief under Fed. R. Civ. P. 60(b), to a Florida inmate who alleged that his former counsel perpetrated a fraud on the court when counsel fraudulently induced him to file a habeas petition on his behalf. The inmate claimed that a lawyer induced him to sign a first petition by saying that his claims were close to being time-barred, and was incompetent in his preparation of this petition.
Citing Gonzalez v. Crosby, 545 U.S. 524 (2005), the Court noted that where, as here, a movant does not assert (or reassert) allegations of errors in his state conviction, Rule 60(b) relief is available. The Court therefore reversed the district court’s ruling dismissing the Rule 60(b) proceeding. The Court, however, cautioned that Rule 60(b) sets high standards, and encouraged the district court to consider a number of factual issues in making its "fraud on the court" determination.
Citing Gonzalez v. Crosby, 545 U.S. 524 (2005), the Court noted that where, as here, a movant does not assert (or reassert) allegations of errors in his state conviction, Rule 60(b) relief is available. The Court therefore reversed the district court’s ruling dismissing the Rule 60(b) proceeding. The Court, however, cautioned that Rule 60(b) sets high standards, and encouraged the district court to consider a number of factual issues in making its "fraud on the court" determination.
Knight: 611(a) Contains General Intent Mens Rea
In U.S. v. Knight, No. 05-14537 (July 3, 2007), the Court held that 18 U.S.C. § 611(a), which criminalizes improperly voting in a federal election, contains a "general intent" mens rea requirement and is therefore not impermissibly vague. It upheld the conviction of an alien who violated the statute by voting in the 2000 Presidential election.
The Court noted that the statute was silent as to intent, but the Court read a general intent requirement into the statute, which made the cime a constitutionally-sound general intent offense.
The Court also rejected Knight’s challenge to grand jury instructions which, he claimed, deprived the grand jury of the option not to indict. The Court noted that similar language had been approved in U.S. v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005). The Court also found the instructions were sound.
The Court noted that the statute was silent as to intent, but the Court read a general intent requirement into the statute, which made the cime a constitutionally-sound general intent offense.
The Court also rejected Knight’s challenge to grand jury instructions which, he claimed, deprived the grand jury of the option not to indict. The Court noted that similar language had been approved in U.S. v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005). The Court also found the instructions were sound.
Wednesday, June 27, 2007
Henry: Not Ineffective Not to Put On Mental Health Experts
In Henry v. Sec. Dep’t of Corrections, No. 06-13821 (June 27, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1985 murder. The Court rejected the argument that counsel was ineffective for failing to call mental health experts at the penalty phase of Henry’s second trial for murder. The Court pointed out that after these experts testified at the first trial, the jury recommended the imposition of the death sentence. Further, one of the experts characterized Henry as a "very dangerous person." At the second trial, Henry’s new counsel elected not to call mental health experts, but to put on favorable testimony from persons who knew Henry well. The Court held that in these circumstances, it was not ineffective assistance to make the tactical decision not to call mental health experts.
Thursday, June 21, 2007
Douglas: Gun in Secretive Position + Threat = "Otherwise Using"
In U.S. v. Douglas, No. 06-12854 (June 19, 2007), the Court affirmed the conviction and sentence of a defendant convicted of kidnapping, robbery and carjacking.
The Court rejected the argument that the trial court should not have admitted supplemental expert opinions from the government’s fingerprint expert regarding the age of a fingerprint found on a vehicle. The district court did not abuse its discretion, because of the expert’s extensive experience and training in fingerprint analysis. His testimony assisted the jury.
Reviewing for "plain error," the Court also rejected the argument that the trial court should have been allowed to call a witness to testify in person, finding no impact on Douglas’ substantial rights in light of the overwhelming evidence of guilt.
The Court also rejected the argument that the district court should have disallowed the victim’s in-court identification of the defendant, because of earlier misdescriptions. Noting the lengthy time the victim had to see the defendant during the commission of the crime, and the consistency of her other prior identifications, the Court found the in-court identification sufficiently reliable.
Turning to sentencing, the Court upheld the firearm "otherwise using" enhancement, in the face of a jury verdict which acquitted Douglas of the gun count. The Court found that the testimony that Douglas kept the gun pointed down in a "secretive location" (his groin), and the verbal threat to use the gun, suffice for the "otherwise using" enhancement.
The Court rejected the argument that the trial court should not have admitted supplemental expert opinions from the government’s fingerprint expert regarding the age of a fingerprint found on a vehicle. The district court did not abuse its discretion, because of the expert’s extensive experience and training in fingerprint analysis. His testimony assisted the jury.
Reviewing for "plain error," the Court also rejected the argument that the trial court should have been allowed to call a witness to testify in person, finding no impact on Douglas’ substantial rights in light of the overwhelming evidence of guilt.
The Court also rejected the argument that the district court should have disallowed the victim’s in-court identification of the defendant, because of earlier misdescriptions. Noting the lengthy time the victim had to see the defendant during the commission of the crime, and the consistency of her other prior identifications, the Court found the in-court identification sufficiently reliable.
Turning to sentencing, the Court upheld the firearm "otherwise using" enhancement, in the face of a jury verdict which acquitted Douglas of the gun count. The Court found that the testimony that Douglas kept the gun pointed down in a "secretive location" (his groin), and the verbal threat to use the gun, suffice for the "otherwise using" enhancement.
Monday, June 18, 2007
Ogle: 7 of 8 habeas claims were exhausted
In Ogle v. Johnson, No. 06-11074 (June 15, 2007), the Court reversed the dismissal of a Georgia inmate’s federal habeas petition. The district court had dismissed the petition on the ground that the inmate had failed to raise the issues in his state postconviction proceedings. But the Court found that the record of these proceedings showed that the inmate had, in fact, raised seven of the eight issues in his prior state postconviction proceedings. The Court therefore remanded the case for further consideration of the habeas petition, except as to one unexhausted claim, which it found procedurally defaulted.
Monday, June 04, 2007
Thomas: Govt's Consecutive Sentence Recommendation Not in Breach
In U.S. v. Thomas, No. 05-16778 (June 1, 2007), the Court rejected the argument that the government’s statement during sentencing that the court give consideration to consecutive punishment violated its promises in the plea agreement.
In the plea agreement, the government agreed not to recommend a specific sentence, but reserved the right to present evidence and make arguments regarding the application of 18 U.S.C. § 3553(a). The presentence investigation report noted that for a number of identity theft offenses, the Guidelines gave the district court discretion as to whether to run sentences consecutively or concurrently. Prior to sentencing, the government noted that Thomas committed the offenses while on probation and recommended that at least one sentence run consecutively.
The Court held that the government did not breach its plea agreement when it recommended consecutive sentences, because it had reserved the right to make a recommendation regarding the application of the Guidelines and § 3553(a).
In the plea agreement, the government agreed not to recommend a specific sentence, but reserved the right to present evidence and make arguments regarding the application of 18 U.S.C. § 3553(a). The presentence investigation report noted that for a number of identity theft offenses, the Guidelines gave the district court discretion as to whether to run sentences consecutively or concurrently. Prior to sentencing, the government noted that Thomas committed the offenses while on probation and recommended that at least one sentence run consecutively.
The Court held that the government did not breach its plea agreement when it recommended consecutive sentences, because it had reserved the right to make a recommendation regarding the application of the Guidelines and § 3553(a).
Presley: Unsworn Allegations Suffice for Summons to Supervised Release Revocation Hearing
In U.S. v. Presley, No. 05-16778 (May 31, 2007), the Court decided two consolidated appeals, affirming a district court’s imposition of a sentence on revocation of supervised release, and likewise affirming a conviction and sentence for unlawful possession of a firearm.
The Court rejected the argument that the district court lacked jurisdiction to sentence Presley for revocation of supervised release. Presley noted that the summons that was issued to him in connection with his revocation hearing was based on unsworn allegations, and that the hearing occurred after the term of supervised release expired. The Court found that these circumstances did not affect the district court’s jurisdiction. The Court found that a person on supervised release is in "constructive custody," and therefore enjoys less rights than a person who is free. Therefore, the absence of sworn allegations did not affect the district court’s jurisdiction.
The Court also rejected the defendant’s argument that he was erroneously denied a "necessity" defense for his unlawful gun possession charge. Presley claimed that he took the firearm from children who were playing with it and hid it the gun 30 minutes before his arrest. The Court pointed out that the defendant had a cell phone when he possessed the firearm, and therefore had an opportunity to notify police of his possession of a firearm, that is, he had a reasonable legal alternative to violating the law. Consequently, the necessity defense could not apply and the district court was not required to tell the jury otherwise.
The Court rejected the argument that the district court lacked jurisdiction to sentence Presley for revocation of supervised release. Presley noted that the summons that was issued to him in connection with his revocation hearing was based on unsworn allegations, and that the hearing occurred after the term of supervised release expired. The Court found that these circumstances did not affect the district court’s jurisdiction. The Court found that a person on supervised release is in "constructive custody," and therefore enjoys less rights than a person who is free. Therefore, the absence of sworn allegations did not affect the district court’s jurisdiction.
The Court also rejected the defendant’s argument that he was erroneously denied a "necessity" defense for his unlawful gun possession charge. Presley claimed that he took the firearm from children who were playing with it and hid it the gun 30 minutes before his arrest. The Court pointed out that the defendant had a cell phone when he possessed the firearm, and therefore had an opportunity to notify police of his possession of a firearm, that is, he had a reasonable legal alternative to violating the law. Consequently, the necessity defense could not apply and the district court was not required to tell the jury otherwise.
Tuesday, May 29, 2007
Dean: Tax Evader 84-months sentence is reasonable
In U.S. v. Dean, No. 06-13946 (May 25, 2007), the Court affirmed the conviction and sentence of a tax protester defendant convicted of tax evasion.
The Court rejected the argument that the district court abused its discretion when it denied Dean’s motion challenging the district’s failure to comply with the grand and/or petit jury selection procedures of 28 U.S.C. § 1867(a). The Court agreed with the district court that the motion was untimely.
The Court also rejected the defendant’s challenge to the district court’s jury instructions on his "good faith" defense, finding that, even when coupled with a "willful blindness" instruction, they complied with Cheek v. U.S, 498 U.S. 192 (1991).
The Court also rejected a reasonableness challenge to Dean’s sentence, finding that the 84 month sentence was reasonable in light of the statutory maximum of 60 months for his tax evasion convictions and the 24 months maximum for his related convictions on other counts.
The Court rejected the argument that the district court abused its discretion when it denied Dean’s motion challenging the district’s failure to comply with the grand and/or petit jury selection procedures of 28 U.S.C. § 1867(a). The Court agreed with the district court that the motion was untimely.
The Court also rejected the defendant’s challenge to the district court’s jury instructions on his "good faith" defense, finding that, even when coupled with a "willful blindness" instruction, they complied with Cheek v. U.S, 498 U.S. 192 (1991).
The Court also rejected a reasonableness challenge to Dean’s sentence, finding that the 84 month sentence was reasonable in light of the statutory maximum of 60 months for his tax evasion convictions and the 24 months maximum for his related convictions on other counts.
Amedeo: New Variances Differ From Old Departures
In U.S. v. Amedeo, No. 05-11806 (May 24, 2007), the Court affirmed a 120-month sentence imposed on resentencing, after an original 216-month sentence was vacated on a first appeal.
At his original sentencing, pre-Booker, the district court imposed upward departures based on findings that Amedeo committed the drug trafficking offense for which he was convicted in order to facilitate a sexual assault, that this resulted in the death of the person (infected by hepatitis C), and that Amedeo distributed drugs to multiple minors. On appeal, the Eleventh Circuit vacated the departures because they were not based on "relevant conduct."
At resentencing, post-Booker, the Court imposed a 120-month sentence – above the Guideline range of 37-46 months, citing the seriousness of the offense.
The Court rejected the argument that the sentencing judge should have recused himself. The Court noted that the judge’s opinion of Amedeo, formed by prior proceedings, was not the type of "personal" or "extrajudicial" bias that can support recusal.
The Court also rejected the argument that the law of the case doctrine precluded the district court at resentencing from relying on factors that the Court had found invalid on appeal. The Court noted that the law of the case doctrine does not apply when a change in controlling law occurs. Here, Booker constituted a change in controlling law. While the district court could no longer consider certain non-relevant conduct as the basis for a departure, it could consider this conduct as the basis for a variance under the Guidelines pursuant to 18 U.S.C. § 3553(a). [Note: this holding means that the scope of conduct which a district court can take into account post-Booker is even broader than the Guidelines concept of "relevant conduct"].
The Court further rejected the argument that 18 U.S.C. § 3742(g)(2), which prohibits sentencing courts from considering new grounds for a sentence on resentencing, precluded the district court’s reliance on new factors at resentencing. The Court noted that this statute took effect (shortly) after Amedeo’s original sentencing, was not retroactively applicable, and therefore could not be relied on by Amedeo.
The Court rejected the argument that the retroactive application of Booker violated the Ex Post Facto doctrine, noting its prior precedent so holding, and that the 40-year statutory maximum provided Amedeo sufficient warning of the penalty for his crime.
Finally, the Court rejected Amedeo’s reasonableness challenge to his sentence. The Court recognized that in at least one respect, the district court imposed an upward variance based on a factor (abuse of the attorney-client relationship) that had already served as the basis for a Guideline specific offense enhancement under USSG § 3B1.3. But based on the "extraordinary" circumstances of the case (presumably, the death of a victim) it was "reasonable" for the sentencing court to consider under § 3553(a) an aspect of Amedeo’s conduct that it had already considered in imposing an enhancement. [Note: the Court’s finding of "extraordinary" circumstances to justify the variance suggests that such "double counting" would only be valid if a departure-like justification for the sentence enhancement existed].
At his original sentencing, pre-Booker, the district court imposed upward departures based on findings that Amedeo committed the drug trafficking offense for which he was convicted in order to facilitate a sexual assault, that this resulted in the death of the person (infected by hepatitis C), and that Amedeo distributed drugs to multiple minors. On appeal, the Eleventh Circuit vacated the departures because they were not based on "relevant conduct."
At resentencing, post-Booker, the Court imposed a 120-month sentence – above the Guideline range of 37-46 months, citing the seriousness of the offense.
The Court rejected the argument that the sentencing judge should have recused himself. The Court noted that the judge’s opinion of Amedeo, formed by prior proceedings, was not the type of "personal" or "extrajudicial" bias that can support recusal.
The Court also rejected the argument that the law of the case doctrine precluded the district court at resentencing from relying on factors that the Court had found invalid on appeal. The Court noted that the law of the case doctrine does not apply when a change in controlling law occurs. Here, Booker constituted a change in controlling law. While the district court could no longer consider certain non-relevant conduct as the basis for a departure, it could consider this conduct as the basis for a variance under the Guidelines pursuant to 18 U.S.C. § 3553(a). [Note: this holding means that the scope of conduct which a district court can take into account post-Booker is even broader than the Guidelines concept of "relevant conduct"].
The Court further rejected the argument that 18 U.S.C. § 3742(g)(2), which prohibits sentencing courts from considering new grounds for a sentence on resentencing, precluded the district court’s reliance on new factors at resentencing. The Court noted that this statute took effect (shortly) after Amedeo’s original sentencing, was not retroactively applicable, and therefore could not be relied on by Amedeo.
The Court rejected the argument that the retroactive application of Booker violated the Ex Post Facto doctrine, noting its prior precedent so holding, and that the 40-year statutory maximum provided Amedeo sufficient warning of the penalty for his crime.
Finally, the Court rejected Amedeo’s reasonableness challenge to his sentence. The Court recognized that in at least one respect, the district court imposed an upward variance based on a factor (abuse of the attorney-client relationship) that had already served as the basis for a Guideline specific offense enhancement under USSG § 3B1.3. But based on the "extraordinary" circumstances of the case (presumably, the death of a victim) it was "reasonable" for the sentencing court to consider under § 3553(a) an aspect of Amedeo’s conduct that it had already considered in imposing an enhancement. [Note: the Court’s finding of "extraordinary" circumstances to justify the variance suggests that such "double counting" would only be valid if a departure-like justification for the sentence enhancement existed].
Wednesday, May 23, 2007
Quirante: Safety Valve Mandatory, Not Discretionary
In U.S. v. Quirante, No. 06-13527 (May 21, 2007), the Court vacated the sentence because the sentencing court erroneously believed that the safety-valve statute, 18 U.S.C. § 3553(f), merely gave it discretion to sentence a defendant pursuant to the Guidelines, instead of the mandatory statutory minimum. In reality, the safety-valve mandated a sentence pursuant to the Guidelines.
The statutory mandatory minimum for Quirante’s drug offense was 120 months. His advisory guideline range was 70-87 months. Quirante met all the requirements of the safety-valve. Nevertheless, the district court imposed a 120 month sentence, because it believed that the safety-valve was merely "discretionary," and it did not believe the defendant’s conduct warranted application of the safety-valve.
Reversing, the Court pointed out that the language of the safety-valve statute is mandatory, not discretionary. "The statutory language states that when a defendant . . . meets the five specified [safety-valve] requirements (as Quirante did), ‘the court shall impose a sentence pursuant to the guidelines.’ The word ‘shall’ does not convey discretion."
While remanding the case for resentencing, the Court expressed no view on whether a sentence higher than the 70-87 months advisory Guideline range would have been reasonable in the exercise of the sentencing court’s post-Booker § 3553(a) discretion. The Court also noted it was not addressing whether the safety-valve applies when the Guideline range is above the statutory minimum.
The statutory mandatory minimum for Quirante’s drug offense was 120 months. His advisory guideline range was 70-87 months. Quirante met all the requirements of the safety-valve. Nevertheless, the district court imposed a 120 month sentence, because it believed that the safety-valve was merely "discretionary," and it did not believe the defendant’s conduct warranted application of the safety-valve.
Reversing, the Court pointed out that the language of the safety-valve statute is mandatory, not discretionary. "The statutory language states that when a defendant . . . meets the five specified [safety-valve] requirements (as Quirante did), ‘the court shall impose a sentence pursuant to the guidelines.’ The word ‘shall’ does not convey discretion."
While remanding the case for resentencing, the Court expressed no view on whether a sentence higher than the 70-87 months advisory Guideline range would have been reasonable in the exercise of the sentencing court’s post-Booker § 3553(a) discretion. The Court also noted it was not addressing whether the safety-valve applies when the Guideline range is above the statutory minimum.
Friday, May 18, 2007
Ward: Conspiracy Acquittal Leaves Sufficient Support for Fraud Convictions
In U.S. v. Ward, No. 05-11622 (May 16, 2007), the Court affirmed the convictions and sentence of a defendant convicted of mail and wire fraud, in charges arising out of his involvement in a Ponzi scheme.
The jury acquitted Ward of the conspiracy count, but convicted him on substantive mail fraud counts. Ward argued that, in view the conspiracy acquittal, and of the fact that he did not "personally commit" each element of wire and mail fraud, the evidence on these counts was insufficient. The Court rejected this argument as contrary to law: "a defendant may be convicted of mail fraud without personally committing each and every element of mail fraud, so long as the defendant knowingly and willfully joined the criminal scheme, and a co-schemer used the mails for the purpose of executing the scheme." Here, the government presented "more than enough evidence" to establish Ward’s knowing participation in the fraud scheme.
The Court also rejected the argument that the trial court constructively amended the indictment by instructing the jury that it could convict Ward on the mail and wire fraud even if it could not reach a verdict on conspiracy. Ward pointed out that each of the substantive counts charged that unlawful acts were undertaken for the purpose of executing the conspiracy. The Court pointed out that these counts also alleged that the acts were undertaken for the purpose of obtaining money by false pretenses. Further, conspiracy and substantive fraud are separate offenses. The "surplusage" of the indictment could be deleted without causing legal error. The deletion of the conspiracy language did not alter the mens rea for the offense, and did not broaden the bases for conviction.
The jury acquitted Ward of the conspiracy count, but convicted him on substantive mail fraud counts. Ward argued that, in view the conspiracy acquittal, and of the fact that he did not "personally commit" each element of wire and mail fraud, the evidence on these counts was insufficient. The Court rejected this argument as contrary to law: "a defendant may be convicted of mail fraud without personally committing each and every element of mail fraud, so long as the defendant knowingly and willfully joined the criminal scheme, and a co-schemer used the mails for the purpose of executing the scheme." Here, the government presented "more than enough evidence" to establish Ward’s knowing participation in the fraud scheme.
The Court also rejected the argument that the trial court constructively amended the indictment by instructing the jury that it could convict Ward on the mail and wire fraud even if it could not reach a verdict on conspiracy. Ward pointed out that each of the substantive counts charged that unlawful acts were undertaken for the purpose of executing the conspiracy. The Court pointed out that these counts also alleged that the acts were undertaken for the purpose of obtaining money by false pretenses. Further, conspiracy and substantive fraud are separate offenses. The "surplusage" of the indictment could be deleted without causing legal error. The deletion of the conspiracy language did not alter the mens rea for the offense, and did not broaden the bases for conviction.
Martinez: Physical Contact suffices for more serious assault than simple assault
In U.S. v. Martinez, No. 06-13429 (May 17, 2007), the Court affirmed a defendant’s conviction for forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1). The offense arose out of the defendant-inmate’s striking a correction officer with what was or appeared to be urine.
The defendant challenged the jury instruction that a forcible assault "means an assault which results in physical contact which does not involve a deadly weapon or bodily harm." The defendant claimed that the more serious level of assault with which he was charged under § 111(a)(1) – more serious than "simple assault" – required a finding of a threat to inflict serious bodily injury. The Court rejected this argument, finding that an assault with actual physical contact suffices to prove more than just simple assault.
The Court rejected Martinez' challenge to the restitution order, which required him to pay the corrections officer $1,801.63 for the medical tests the officer paid for after the assault. The Court noted that restitution was authorized under the Mandatory Victims Restitution Act.
The defendant challenged the jury instruction that a forcible assault "means an assault which results in physical contact which does not involve a deadly weapon or bodily harm." The defendant claimed that the more serious level of assault with which he was charged under § 111(a)(1) – more serious than "simple assault" – required a finding of a threat to inflict serious bodily injury. The Court rejected this argument, finding that an assault with actual physical contact suffices to prove more than just simple assault.
The Court rejected Martinez' challenge to the restitution order, which required him to pay the corrections officer $1,801.63 for the medical tests the officer paid for after the assault. The Court noted that restitution was authorized under the Mandatory Victims Restitution Act.
Llanos-Agostadero: Battery on Pregnant Woman is "Crime of Violence"
In U.S. v. Llanos-Agostadero, No. 06-14382 (May 15, 2007), the Court held that a Florida conviction for the offense of aggravated robbery on a pregnant woman qualified as a "crime of violence" for purposes of the 16-level sentence enhancement of USSG § 2L1.2(b)(1)(A)(ii).
The Court noted that the Florida offense involved actual and intentional touching or striking another person, or intentionally causing bodily harm to another person. Citing analogous cases involving analogous battery offenses, the Court concluded that the battery offense at issue constituted a crime of violence.
The Court also rejected a reasonableness challenge to the sentence based on the unavailability of the Attorney General’s "fast-track" program in the district in which the defendant was sentenced. Citing U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006), the Court noted that the fast-track program does not create unwarranted disparities in sentences, or sentences "greater than necessary to achieve the purposes of § 3553(a).
The Court noted that the Florida offense involved actual and intentional touching or striking another person, or intentionally causing bodily harm to another person. Citing analogous cases involving analogous battery offenses, the Court concluded that the battery offense at issue constituted a crime of violence.
The Court also rejected a reasonableness challenge to the sentence based on the unavailability of the Attorney General’s "fast-track" program in the district in which the defendant was sentenced. Citing U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006), the Court noted that the fast-track program does not create unwarranted disparities in sentences, or sentences "greater than necessary to achieve the purposes of § 3553(a).
Monday, May 14, 2007
Johnson: Obstruction convictions and enhancement affirmed
In U.S. v. Johnson, No. 06-13564 (May 11, 2007), the Court affirmed obstruction of justice convictions of a defendant who lied about his communications with a Marathon, Florida landowner about plans to illegally fill the water on his property.
The Court rejected Johnson’s argument that the evidence was insufficient to convict since the government was still able to convict the landowner of environmental violations. The Court noted that the statutes criminalize the interference with the administration of justice, and the tendency to influence the government in its decisionmaking process.
The Court also rejected Johnson’s challenge to his sentence enhancement, under USSG § 2J1.3(b)(2), for perjury which resulted in "substantial interference with the administration of justice." The government’s claim was not that the costs of investigating Johnson’s conduct were high, but that the costs of investigating the landowner’s offense were greater as a result of Johnson’s obstruction. The Court noted that the government was forced to expend additional resources to contact other witnesses. The Court concluded that the sentencing court’s finding was not "clearly erroneous."
Finally, the Court rejected a "reasonableness" challenge to Johnson’s 24-month sentence. This sentence, at the low end of the guideline range, was not unreasonable.
The Court rejected Johnson’s argument that the evidence was insufficient to convict since the government was still able to convict the landowner of environmental violations. The Court noted that the statutes criminalize the interference with the administration of justice, and the tendency to influence the government in its decisionmaking process.
The Court also rejected Johnson’s challenge to his sentence enhancement, under USSG § 2J1.3(b)(2), for perjury which resulted in "substantial interference with the administration of justice." The government’s claim was not that the costs of investigating Johnson’s conduct were high, but that the costs of investigating the landowner’s offense were greater as a result of Johnson’s obstruction. The Court noted that the government was forced to expend additional resources to contact other witnesses. The Court concluded that the sentencing court’s finding was not "clearly erroneous."
Finally, the Court rejected a "reasonableness" challenge to Johnson’s 24-month sentence. This sentence, at the low end of the guideline range, was not unreasonable.
Medina: Kickback is not in and of itself Fraud
In U.S. v. Medina, No. 05-14864 (May 11, 2007), the Court, on an appeal of convictions of Medicare Health Care Fraud and money laundering, reversed all convictions of one defendant, reserved some convictions of co-defendants, and vacated the sentence for incorrect loss calculations.
The scheme involved bringing patients to the defendants’ pharmacies in exchange for illegal kickbacks for patients and doctors. No evidence indicated, however, that Medicare was billed for unnecessary medical procedures. A confidential informant met with the defendants to exchange, for a fee, their checks for cash, but admitted on cross-examination that one defendant, Medina, a secretary, was always sent out of the room to avoid her hearing them talk about the kickback scheme.
As to the secretary, the Court found the evidence was insufficient to sustain her convictions. The Court noted that the fraud offense was based on making a knowingly false statement to Medicare. Here, the false statement would have been the pharmacies’ written promise to abide by Medicare’s regulations, including its prohibition on kickbacks. However, no evidence established the secretary’s awareness of the kickbacks.
As to the other defendants, none of the counts of convictions that predated the statement to Medicare could be sustained. The kickbacks, in and of themselves did not constitute fraud, and those which occurred before the statements were not the subject of a false statement. The Court rejected the government’s reliance on other evidence as proof of fraud, including its argument that it did not call certain witnesses to establish an element of the offense because they would not make "ideal witnesses." "The government cannot ignore [its] burden [of proof] simply because the witnesses who can establish the required elements are less than ideal."
The Court also vacated the money laundering counts which related to the fraud counts it had set aside, since money laundering involves the proceeds of activity known by the defendants to be illegal. The Court, however, upheld money laundering convictions as to the principal of the crime, finding that the acts occurred after she signed documents certifying (falsely) that she would follow Medicare regulations.
As to the general conspiracy charge, under 18 U.S.C. § 371, the Court upheld the convictions of two defendants, but again vacated the secretary’s conviction, finding that her lack of awareness of the kickback conspiracy, and of the conspiracy’s other objectives, left insufficient evidence to convict.
Turning to sentencing, the Court noted that the district court failed to make a sufficient loss calculation, and instead sentenced the defendants for the entire amount Medicare was billed in the period, without explanation. However, in the absence of evidence of Medicare’s payment of unnecessary medical claims, or that the patient kickback scheme resulted in any actual loss to Medicare, this calculation was inadequate. The Court therefore remanded the case for resentencing.
The scheme involved bringing patients to the defendants’ pharmacies in exchange for illegal kickbacks for patients and doctors. No evidence indicated, however, that Medicare was billed for unnecessary medical procedures. A confidential informant met with the defendants to exchange, for a fee, their checks for cash, but admitted on cross-examination that one defendant, Medina, a secretary, was always sent out of the room to avoid her hearing them talk about the kickback scheme.
As to the secretary, the Court found the evidence was insufficient to sustain her convictions. The Court noted that the fraud offense was based on making a knowingly false statement to Medicare. Here, the false statement would have been the pharmacies’ written promise to abide by Medicare’s regulations, including its prohibition on kickbacks. However, no evidence established the secretary’s awareness of the kickbacks.
As to the other defendants, none of the counts of convictions that predated the statement to Medicare could be sustained. The kickbacks, in and of themselves did not constitute fraud, and those which occurred before the statements were not the subject of a false statement. The Court rejected the government’s reliance on other evidence as proof of fraud, including its argument that it did not call certain witnesses to establish an element of the offense because they would not make "ideal witnesses." "The government cannot ignore [its] burden [of proof] simply because the witnesses who can establish the required elements are less than ideal."
The Court also vacated the money laundering counts which related to the fraud counts it had set aside, since money laundering involves the proceeds of activity known by the defendants to be illegal. The Court, however, upheld money laundering convictions as to the principal of the crime, finding that the acts occurred after she signed documents certifying (falsely) that she would follow Medicare regulations.
As to the general conspiracy charge, under 18 U.S.C. § 371, the Court upheld the convictions of two defendants, but again vacated the secretary’s conviction, finding that her lack of awareness of the kickback conspiracy, and of the conspiracy’s other objectives, left insufficient evidence to convict.
Turning to sentencing, the Court noted that the district court failed to make a sufficient loss calculation, and instead sentenced the defendants for the entire amount Medicare was billed in the period, without explanation. However, in the absence of evidence of Medicare’s payment of unnecessary medical claims, or that the patient kickback scheme resulted in any actual loss to Medicare, this calculation was inadequate. The Court therefore remanded the case for resentencing.
Edouard: No Erroneous Failure to Appoint Interpreter
In U.S. v. Edouard, No. 05-15808 (May 11, 2007), the Court affirmed the convictions and sentences of defendants involved in large-scale cocaine-trafficking between Haiti and the U.S.
The Court rejected Edouard’s argument that he was unfairly denied the assistance of a Haitian Creole interpreter during trial. The Court cited portions of the transcript which undercut Edouard’s claim of a language barrier.
The Court also rejected the Batson challenge to the exclusion of certain jurors. The Court faulted the district court for summarily overruling Edouard’s Batson objections, but ultimately found no error in view of the prosecution’s forthcoming statement of his reasons for exercising his strikes.
The Court found no Rule 404(b) violation in the admission of evidence of drug-trafficking in years prior to the charged conspiracy. The Court found that this evidence properly established the defendant’s "intent." The Court also found no error in the admission of evidence that the defendant had threatened to kill a person if money was not returned to him. The Court found that this threat was an integral part of the money laundering charge.
The Court further rejected the argument that the case involved not a single, but multiple conspiracies. The Court noted the common goal of the conspiracy (drug-trafficking) and the overlap of participants.
The Court found sufficient evidence to sustain several specific money laundering counts, noting that separate transactions were part of the scheme, and each gave rise to a separate count.
Finally, the Court rejected the argument that the sentencing should have been postponed after new counsel was hired to represent Edouard, noting that the defendant waited two weeks after new counsel made an appearance before seeking a continuance. Further, this counsel’s untimely objections to the PSI were properly not considered, because he waited 20 days after substitution of counsel before filing them late.
The Court rejected Edouard’s argument that he was unfairly denied the assistance of a Haitian Creole interpreter during trial. The Court cited portions of the transcript which undercut Edouard’s claim of a language barrier.
The Court also rejected the Batson challenge to the exclusion of certain jurors. The Court faulted the district court for summarily overruling Edouard’s Batson objections, but ultimately found no error in view of the prosecution’s forthcoming statement of his reasons for exercising his strikes.
The Court found no Rule 404(b) violation in the admission of evidence of drug-trafficking in years prior to the charged conspiracy. The Court found that this evidence properly established the defendant’s "intent." The Court also found no error in the admission of evidence that the defendant had threatened to kill a person if money was not returned to him. The Court found that this threat was an integral part of the money laundering charge.
The Court further rejected the argument that the case involved not a single, but multiple conspiracies. The Court noted the common goal of the conspiracy (drug-trafficking) and the overlap of participants.
The Court found sufficient evidence to sustain several specific money laundering counts, noting that separate transactions were part of the scheme, and each gave rise to a separate count.
Finally, the Court rejected the argument that the sentencing should have been postponed after new counsel was hired to represent Edouard, noting that the defendant waited two weeks after new counsel made an appearance before seeking a continuance. Further, this counsel’s untimely objections to the PSI were properly not considered, because he waited 20 days after substitution of counsel before filing them late.
Jordan: Actual Innocence not basis for habeas relief
In Jordan v. Dep’t of Corrections, No. 05-14736 (May 14, 2007), the Court held that the district court properly dismissed a second and successive habeas petition. The Florida state inmate’s petition claimed that his confession was involuntary, and asserted a claim of "actual innocence" based on newly obtained evidence. As to the involuntary confession claim, the Court found that it was not based on newly discovered evidence, and therefore did not meet the requirements of a second and successive habeas petition. As to the actual innocence claim, the Court found that this claim had not been preserved in the appeal briefs, and in any event, precedent forbade granting relief based upon a claim of actual innocence.
Thursday, April 26, 2007
Mauk: Dismiss w/o prejudice to let habeas petitioner exhaust
In Mauk v. Lanier, No. 06-12137 (Apr. 23, 2007), the Court affirmed, on failure to exhaust grounds, the denial of habeas relief to Georgia prisoner who argued that the Georgia appellate court which affirmed his Georgia conviction ran afoul of his Sixth Amendment right to jury trial when it determined that the outdoor area in which Mauk committed an act of sodomy was not a "private place" and therefore ran afoul of the Georgia statute which criminalized sodomy in a "public place."
Without reaching the merits of Mauk’s Sixth Amendment argument, the Court found that Mauk had not exhausted this argument in the Georgia courts. The Court remanded the case with instructions to dismiss the petition without prejudice, in order to give Mauk an opportunity to exhaust his argument in the Georgia state courts.
Without reaching the merits of Mauk’s Sixth Amendment argument, the Court found that Mauk had not exhausted this argument in the Georgia courts. The Court remanded the case with instructions to dismiss the petition without prejudice, in order to give Mauk an opportunity to exhaust his argument in the Georgia state courts.
Monday, April 23, 2007
Livesay: Probation unreasonable for key HealthSouth fraud participant
In U.S. v. Livesay, No. 06-11303 (April 19, 2007), the Court reversed as unreasonable a sentence of probation on a defendant convicted of involvement in HealthSouth’s "$1.4 billion dollar securities fraud."
The Court found that the district court’s § 5K1.1 downward departure was excessive. The advisory guidelines range was 78-97 months. Livesay was a "key" participant in the offense. Citing U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006), in which it also reversed a low sentence for another important participant in the HealthSouth fraud, the Court noted that valuable cooperation "is not a get-out-of-jail free card." Livesay, moreover, did not withdraw from the conspiracy until after it was discovered. A probation sentence fails to deter other white collar criminals. Although Livesay was below Martin in the HealthSouth hierarchy, he still has "power." Further, Livesay personally profited from the fraud for several years.
The Court found that the district court’s § 5K1.1 downward departure was excessive. The advisory guidelines range was 78-97 months. Livesay was a "key" participant in the offense. Citing U.S. v. Martin, 455 F.3d 1227 (11th Cir. 2006), in which it also reversed a low sentence for another important participant in the HealthSouth fraud, the Court noted that valuable cooperation "is not a get-out-of-jail free card." Livesay, moreover, did not withdraw from the conspiracy until after it was discovered. A probation sentence fails to deter other white collar criminals. Although Livesay was below Martin in the HealthSouth hierarchy, he still has "power." Further, Livesay personally profited from the fraud for several years.
Garcia-Jaimes: Can't Possess Atlanta Weapon While in Texas
In U.S. v. Garcia-Jaimes, No. 05-14475 (April 19, 2007), the Court affirmed drug trafficking and money laundering convictions against multiple defendants, but reversed one gun possession conviction.
As to the money laundering convictions, the Court rejected the argument that the evidence was insufficient because the government only established that drug money was hidden from the police inside cars loaded on the car hauler destined from Mexico, and never showed that any funds were actually transported outside the United States. The Court stated that hiding money inside cars on car hauler trailers was an attempt to conceal the money’s association with an illegal enterprise. This sufficed for purposes of establishing guilt under 18 U.S.C. § 1956(a)(2)(B)(i).
The Court reversed one defendant’s gun possession conviction. This defendant stayed in Texas or Mexico at all relevant times; the weapons were seized in Atlanta. Thus, this defendant was not in a location where he exercised possession over the weapons.
As to the money laundering convictions, the Court rejected the argument that the evidence was insufficient because the government only established that drug money was hidden from the police inside cars loaded on the car hauler destined from Mexico, and never showed that any funds were actually transported outside the United States. The Court stated that hiding money inside cars on car hauler trailers was an attempt to conceal the money’s association with an illegal enterprise. This sufficed for purposes of establishing guilt under 18 U.S.C. § 1956(a)(2)(B)(i).
The Court reversed one defendant’s gun possession conviction. This defendant stayed in Texas or Mexico at all relevant times; the weapons were seized in Atlanta. Thus, this defendant was not in a location where he exercised possession over the weapons.
Wednesday, April 18, 2007
Orisnord: Fleeing is a "Crime of Violence"
In U.S. v. Orisnord, No. 05-14659 (Apr. 11, 2007), the Court rejected challenges to the sufficiency of the evidence by defendants convicted of charges arising out of a staged home invasion robbery of drugs. As to one defendant, the Court accepted, without elaboration, the government’s concession that the evidence was insufficient only as to the firearms convictions.
The Court rejected the argument that the Confrontation Clause was violated when the court did not permit additional questioning of an ATF agent regarding his tactical methods. The court found that the questioning which was permitted sufficed to assess the agent’s credibility.
The Court further affirmed the denial of requests to conduct post-verdict interviews of specific jurors regarding juror impropriety. The Court found that the improprieties at issue did not warrant further inquiry.
Turning to the sentences, the Court held that the crime of fleeing and eluding law enforcement officers qualified as a "crime of violence" for purposes of the career offender sentence enhancement provisions of the guidelines. Noting the "serious potential risk" posed by fleeing law enforcement, the Court joined several other circuits (except the Ninth) to hold that fleeing constitutes a "crime of violence." Finally, the Court found the 420-month sentences "reasonable."
The Court rejected the argument that the Confrontation Clause was violated when the court did not permit additional questioning of an ATF agent regarding his tactical methods. The court found that the questioning which was permitted sufficed to assess the agent’s credibility.
The Court further affirmed the denial of requests to conduct post-verdict interviews of specific jurors regarding juror impropriety. The Court found that the improprieties at issue did not warrant further inquiry.
Turning to the sentences, the Court held that the crime of fleeing and eluding law enforcement officers qualified as a "crime of violence" for purposes of the career offender sentence enhancement provisions of the guidelines. Noting the "serious potential risk" posed by fleeing law enforcement, the Court joined several other circuits (except the Ninth) to hold that fleeing constitutes a "crime of violence." Finally, the Court found the 420-month sentences "reasonable."
Ohayon: Acquittal on key factual issue precludes retrial on related count
In U.S. v. Ohayon, No. 05-17045 (April 12, 2007), the Court (Pryor, Birch, Nanble b.d.) held that the government was collaterally estopped from retrying Ohayon on the charge of conspiracy to possess ecstacy with intent to distribute, a count for which the jury was unable to reach a verdict, when the jury had acquitted him, in the same transaction, of the charge of attempted possession with intent to distribute.
Citing Ashe v. Swenson, 397 U.S. 436 (1970), the Court noted that the collateral estoppel inquiry focused on whether a rational jury could have grounded its acquittal on a factual issue other than that which the defendant seeks to foreclose from consideration, taking account of the pleadings, evidence, charge and other relevant matter. Here, Ohayon’s only defense was that he was unaware that the bags he picked up contained drugs. The jury’s questions to the court during deliberations focused on this issue. The evidence supported the defense. Hence, this issue was resolved in Ohayon’s favor with the attempt acquittal at the first trial, and this foreclosed his subsequent conviction on the conspiracy count.
The Court rejected the government’s argument that the very existence of a partial verdict itself meant that the jury must have rested its acquittal and non-decision on different grounds. The Court noted that the precedent upon which the government relied postdated U.S. v. Larkin, 605 F.2d 1360 (5th Cir. 1979), and was inconsistent with Ashe. In addition, one cannot impute a single, rational basis to a mistried count, since, by definition, the jury failed to reach agreement on that count.
The Court rejected the argument that knowledge of the contents of the bags in question was not an essential element of the conspiracy charge. Conspiracy requires proof that the defendant knew the essential nature of the conspiracy, which in this case meant he was aware of the contents of the bags.
The Court distinguished U.S. v. Brown, 983 F.3 201 (11th Cir. 1993). Brown stated that an "identity" of legal issues must exist in order for collateral estoppel to apply. The Court acknowledged that no identity of legal issues existed in Ohayon’s case, because attempt and conspiracy have different elements. But Brown’s "identity" requirement was unnecessary to its holding. Further, Brown departed from earlier precedent, which focused on factual, not legal identity of issues. Finally, Brown has not been followed in subsequent cases.
Citing Ashe v. Swenson, 397 U.S. 436 (1970), the Court noted that the collateral estoppel inquiry focused on whether a rational jury could have grounded its acquittal on a factual issue other than that which the defendant seeks to foreclose from consideration, taking account of the pleadings, evidence, charge and other relevant matter. Here, Ohayon’s only defense was that he was unaware that the bags he picked up contained drugs. The jury’s questions to the court during deliberations focused on this issue. The evidence supported the defense. Hence, this issue was resolved in Ohayon’s favor with the attempt acquittal at the first trial, and this foreclosed his subsequent conviction on the conspiracy count.
The Court rejected the government’s argument that the very existence of a partial verdict itself meant that the jury must have rested its acquittal and non-decision on different grounds. The Court noted that the precedent upon which the government relied postdated U.S. v. Larkin, 605 F.2d 1360 (5th Cir. 1979), and was inconsistent with Ashe. In addition, one cannot impute a single, rational basis to a mistried count, since, by definition, the jury failed to reach agreement on that count.
The Court rejected the argument that knowledge of the contents of the bags in question was not an essential element of the conspiracy charge. Conspiracy requires proof that the defendant knew the essential nature of the conspiracy, which in this case meant he was aware of the contents of the bags.
The Court distinguished U.S. v. Brown, 983 F.3 201 (11th Cir. 1993). Brown stated that an "identity" of legal issues must exist in order for collateral estoppel to apply. The Court acknowledged that no identity of legal issues existed in Ohayon’s case, because attempt and conspiracy have different elements. But Brown’s "identity" requirement was unnecessary to its holding. Further, Brown departed from earlier precedent, which focused on factual, not legal identity of issues. Finally, Brown has not been followed in subsequent cases.
Wednesday, April 11, 2007
Garey: Right to Counsel is "Preeminent" vs Self-Representation
In U.S. v. Garey, No. 05-14631 (Apr. 11, 2007), the Court (2-1) set aside the defendant’s guilty plea because the district court violated his right to counsel.
At the plea colloquy, the defendant asked to be relieved of appointed lawyer, whom he felt had a conflict because he was one of the victims of the defendant’s alleged crime – which involved threats of using a weapon of mass destruction. The trial court told the defendant he could only proceed without this lawyer if he represented himself. The defendant said he would go forward with self-representation involuntarily, because he wished to be represented by counsel – but not by his current court-appointed lawyer.
Noting the difficulty of reconciling the right to counsel and the right to self-representation, the Court noted that the right to counsel is the "preeminent" of the two. Consequently, a defendant must clearly invoke the right to self-representation. Here, Garey did not do so, because he stated that he would only proceed without representation "involuntarily." Accordingly, the Court vacated Garey’s guilty plea and remanded the case.
At the plea colloquy, the defendant asked to be relieved of appointed lawyer, whom he felt had a conflict because he was one of the victims of the defendant’s alleged crime – which involved threats of using a weapon of mass destruction. The trial court told the defendant he could only proceed without this lawyer if he represented himself. The defendant said he would go forward with self-representation involuntarily, because he wished to be represented by counsel – but not by his current court-appointed lawyer.
Noting the difficulty of reconciling the right to counsel and the right to self-representation, the Court noted that the right to counsel is the "preeminent" of the two. Consequently, a defendant must clearly invoke the right to self-representation. Here, Garey did not do so, because he stated that he would only proceed without representation "involuntarily." Accordingly, the Court vacated Garey’s guilty plea and remanded the case.
Lett: No Rule 35(a) authority to modify sentence where error was not "clear"
In U.S. v. Lett, No. 06-12537 (Apr. 6, 2007), the Court held that a sentencing "error" was not "clear" enough (if sentencing error even occurred) to authorize the district court’s correction of a sentence pursuant to Fed. R. Crim. P. 35(a).
The defendant, a war veteran who had served the country with distinction, was convicted of drug trafficking. His guideline sentence was 70 months. The statutory mandatory minimum was 60 months. The defendant sought a safety-valve reduction below the mandatory minimum – and the guideline sentence. Believing that it was not authorized to sentence below the mandatory minimum when the Guideline range was above the mandatory minimum, the district court imposed a 60-month sentence. A motion was then filed under Rule 35(a), arguing that post-Booker, the court was in fact authorized to grant the defendant a safety-valve sentence. The district court noted that the answer to this question was "not clear" because of the lack of applicable caselaw. It decided to modify the sentence, and imposed a sentence of time served, in effect, eleven days.
Reversing, the Court of Appeals pointed out that to show "clear error" under Rule 35(a), a party had to show "obvious errors." Here, the error was not obvious, because the district court merely misunderstood (at most) its sentencing discretion, but still imposed a permissible sentence under the Guidelines and applicable statutes. "Arguable error is one thin, and clear error is another." In the absence of caselaw on point in the Circuit, no clear error occurred. The Court remanded with instructions to impose the original 60 months sentence.
The defendant, a war veteran who had served the country with distinction, was convicted of drug trafficking. His guideline sentence was 70 months. The statutory mandatory minimum was 60 months. The defendant sought a safety-valve reduction below the mandatory minimum – and the guideline sentence. Believing that it was not authorized to sentence below the mandatory minimum when the Guideline range was above the mandatory minimum, the district court imposed a 60-month sentence. A motion was then filed under Rule 35(a), arguing that post-Booker, the court was in fact authorized to grant the defendant a safety-valve sentence. The district court noted that the answer to this question was "not clear" because of the lack of applicable caselaw. It decided to modify the sentence, and imposed a sentence of time served, in effect, eleven days.
Reversing, the Court of Appeals pointed out that to show "clear error" under Rule 35(a), a party had to show "obvious errors." Here, the error was not obvious, because the district court merely misunderstood (at most) its sentencing discretion, but still imposed a permissible sentence under the Guidelines and applicable statutes. "Arguable error is one thin, and clear error is another." In the absence of caselaw on point in the Circuit, no clear error occurred. The Court remanded with instructions to impose the original 60 months sentence.
Tuesday, April 10, 2007
Robbins: Conviction becomes final after sentence becomes final
In Robbins v. Sec. Dep’t of Corrections, No. 05-14992 (Apr. 3, 2007), the Court reversed the dismissal on untimeliness grounds of a § 2254 habeas petition. Accepting the State’s confession of error, the Court ruled that a conviction is not final until affirmed on direct appeal. Here, the state court imposed a sentence on resentencing, and Robbins’ statute of limitations began to run after this sentence became final, subsequent to his conviction.
Wednesday, April 04, 2007
Clay: 60-month sentence ok for extraordinary rehabilitaton.
In U.S. v. Clay, No. 06-10088 (Apr. 3, 2007), the Court (Carnes, Pryor, Farris b.d.) affirmed the imposition of a 60-month sentence on a defendant convicted of methamphetamine trafficking, when the advisory Guidelines range was 188-235 months.
The Court first rejected Clay’s challenge to the denial of his motion to suppress. The Court found that the police had reasonable suspicion to pat-down Clay’s person when they saw a shotgun in plain view. The search of Clay’s pocket was also reasonable, because the object the officer felt in Clay’s pocket felt like a screwdriver that might be used as a weapon (it turned out to be an empty barrel from a ball-point pen, which is used for ingesting narcotics).
The Court held that the district court did not err in relying on acquitted conduct in enhancing Clay’s sentence. The resulting increase in the sentence – 3.7 times the bottom of the Guideline range – was not so extraordinary as to violate Due Process.
Rejecting a government appeal, the Court held that the sentence was not unreasonable. The Court reiterated that extraordinary reductions from the Guidelines based on § 3553(a) "must be supported by extraordinary circumstances." Here, the district court found extraordinary rehabilitation in the time after Clay’s indictment, and before his conviction. Clay worked a second job, inspired fellow drug addicts to overcome their addiction, and visited a juvenile detention center to encourage young people to change their lives.
The Court first rejected Clay’s challenge to the denial of his motion to suppress. The Court found that the police had reasonable suspicion to pat-down Clay’s person when they saw a shotgun in plain view. The search of Clay’s pocket was also reasonable, because the object the officer felt in Clay’s pocket felt like a screwdriver that might be used as a weapon (it turned out to be an empty barrel from a ball-point pen, which is used for ingesting narcotics).
The Court held that the district court did not err in relying on acquitted conduct in enhancing Clay’s sentence. The resulting increase in the sentence – 3.7 times the bottom of the Guideline range – was not so extraordinary as to violate Due Process.
Rejecting a government appeal, the Court held that the sentence was not unreasonable. The Court reiterated that extraordinary reductions from the Guidelines based on § 3553(a) "must be supported by extraordinary circumstances." Here, the district court found extraordinary rehabilitation in the time after Clay’s indictment, and before his conviction. Clay worked a second job, inspired fellow drug addicts to overcome their addiction, and visited a juvenile detention center to encourage young people to change their lives.
Tuesday, March 27, 2007
Lindsey: Tip with corroborration sufficient for detention
In U.S. v. Lindsey, No. 05-11273 (March 27, 2007), the Court (2-1, Barkett, J., dissenting), the court affirmed the conviction and 300-month sentence of a defendant convicted of being a felon in possession of one or more rounds of ammunition.
The Court affirmed the denial of a motion to suppress, finding that there was sufficient reasonable suspicion of criminal behavior to justify the defendant’s detention. The police received a tip from a person who identified himself as "Davis" reporting that four black males were loading guns and putting them in a large white SUV parked at a gas station across from a bank. The police had been investigating a series of armed bank robberies by three or four blacks who entered banks with assault weapons and drove SUV-type vehicles. The police went to the scene and saw a white Ford SUV parked behind the gas station, with four black occupants, which moved when a police vehicle came into view. The police shouted to the individuals to get on the ground. Police converged. The defendant was arrested.
The Court distinguished Florida v. J.L., 120 S.Ct. 1375 (2000), finding that the police here had more than an inchoate and unparticularized suspicion based on an anonymous tip. The tip was consistent with an ongoing investigation. Further, the movement of the SUV when the police vehicle came into view gave rise to further suspicion.
The Court further found that probably cause supported the defendant’s subsequent arrest. After the police had detained the four occupants of the SUV, an armored car pulled up to the bank, and guards loaded money into it. The four men were convicted felons. Peering through the tinted windows the SUV, police saw what they believed was a rifle bag.
The Court further rejected defendant’s challenge to the search of the vehicle, noting the applicability of the automobile exception to the warrant requirement.
The Court found no Brady violation in the destruction of a fingerprint card which, the police claimed, contained no valuable information.
Finally, the Court affirmed the district court’s admission of uncharged criminal activity, namely defendant’s plan to rob a bank, at trial. This evidence was "inextricably intertwined" with the charged conduct.
Finally, the Court found no error in the 300-months sentence reliance on uncharged criminal activity, or on prior convictions.
The Court affirmed the denial of a motion to suppress, finding that there was sufficient reasonable suspicion of criminal behavior to justify the defendant’s detention. The police received a tip from a person who identified himself as "Davis" reporting that four black males were loading guns and putting them in a large white SUV parked at a gas station across from a bank. The police had been investigating a series of armed bank robberies by three or four blacks who entered banks with assault weapons and drove SUV-type vehicles. The police went to the scene and saw a white Ford SUV parked behind the gas station, with four black occupants, which moved when a police vehicle came into view. The police shouted to the individuals to get on the ground. Police converged. The defendant was arrested.
The Court distinguished Florida v. J.L., 120 S.Ct. 1375 (2000), finding that the police here had more than an inchoate and unparticularized suspicion based on an anonymous tip. The tip was consistent with an ongoing investigation. Further, the movement of the SUV when the police vehicle came into view gave rise to further suspicion.
The Court further found that probably cause supported the defendant’s subsequent arrest. After the police had detained the four occupants of the SUV, an armored car pulled up to the bank, and guards loaded money into it. The four men were convicted felons. Peering through the tinted windows the SUV, police saw what they believed was a rifle bag.
The Court further rejected defendant’s challenge to the search of the vehicle, noting the applicability of the automobile exception to the warrant requirement.
The Court found no Brady violation in the destruction of a fingerprint card which, the police claimed, contained no valuable information.
Finally, the Court affirmed the district court’s admission of uncharged criminal activity, namely defendant’s plan to rob a bank, at trial. This evidence was "inextricably intertwined" with the charged conduct.
Finally, the Court found no error in the 300-months sentence reliance on uncharged criminal activity, or on prior convictions.
Monday, March 26, 2007
Jimenez: Court denies certificate of appealability
In Jimenez v. Dep’t of Corrections, No. 06-14523 (March 23, 2007), the Court denied a certificate of appealability to a Florida death row inmate who claimed that the Florida Supreme Court failed to apply retroactively a defense-favorable burglary precedent to him.
The Court noted that Jimenez failed to exhaust his retroactivity claim in the Florida courts, and that he was now barred from doing so in federal court, because his claim would now be procedurally defaulted in Florida state courts, and he had not shown "cause" for the default. Even if his claim were not defaulted, the Court found no constitutional error in the Florida courts’ refusal to apply a precedent retroactively to Jimenez.
The Court found Jimenez’ remaining claims to be procedurally barred, or failed to assert a claim worthy of a certificate of appealability.
The Court noted that Jimenez failed to exhaust his retroactivity claim in the Florida courts, and that he was now barred from doing so in federal court, because his claim would now be procedurally defaulted in Florida state courts, and he had not shown "cause" for the default. Even if his claim were not defaulted, the Court found no constitutional error in the Florida courts’ refusal to apply a precedent retroactively to Jimenez.
The Court found Jimenez’ remaining claims to be procedurally barred, or failed to assert a claim worthy of a certificate of appealability.
Wednesday, March 21, 2007
Smith: Mere Possession = In Connection
In U.S. v. Smith, No. 06-14077 (March 19, 2007), the Court affirmed the 294-month sentence of a defendant convicted of possession of ammunition by a convicted felon.
Smith, a convicted felon, was stopped in an automobile and seen attempting to conceal a firearm and cocaine. He fled on foot. When arrested, one .38 caliber bullet was found in his pocket, another on the ground where he had thrown it. The sentencing court imposed a sentence enhancement based on the guideline provision which calls for enhancements when ammunition is possessed "in connection with" a drug felony or another felony offense. Smith challenged the enhancement on the ground that the ammunition was not possessed "in connection with" another felony. The Court rejected this argument, concluding that "mere possession" of the ammunition sufficed to make it "in connection with" another felony.
The Court also rejected the argument that the sentencing court erroneously treated the Guidelines as mandatory, noting the Court’s reference to the "advisory range."
Smith, a convicted felon, was stopped in an automobile and seen attempting to conceal a firearm and cocaine. He fled on foot. When arrested, one .38 caliber bullet was found in his pocket, another on the ground where he had thrown it. The sentencing court imposed a sentence enhancement based on the guideline provision which calls for enhancements when ammunition is possessed "in connection with" a drug felony or another felony offense. Smith challenged the enhancement on the ground that the ammunition was not possessed "in connection with" another felony. The Court rejected this argument, concluding that "mere possession" of the ammunition sufficed to make it "in connection with" another felony.
The Court also rejected the argument that the sentencing court erroneously treated the Guidelines as mandatory, noting the Court’s reference to the "advisory range."
Friday, March 16, 2007
Thompson: Counsel did not adequately consult regarding appeal
In Thompson v. U.S., No. 05-16970 (Mar. 14, 2007), the Court (Tjoflat, Barkett & Kravitch) reversed the denial of a § 2255 motion.
The defendant claimed that his counsel was ineffective for failure to file a notice of appeal. The Court affirmed the district court’s finding that the defendant had not instructed his lawyer to file a notice of appeal. However, the Court found that counsel had not adequately discussed the appeal with his client. Counsel had told the defendant an appeal of his sentence would not be worthwhile, in a five-minute exchange. The Court found that this was not adequate "consultation." Moreover, the defendant was "unhappy" with the sentence he received. This demonstrated a reasonable probability that, had the defendant been adequately consulted, he would have requested an appeal. Hence, counsel was ineffective.
The defendant claimed that his counsel was ineffective for failure to file a notice of appeal. The Court affirmed the district court’s finding that the defendant had not instructed his lawyer to file a notice of appeal. However, the Court found that counsel had not adequately discussed the appeal with his client. Counsel had told the defendant an appeal of his sentence would not be worthwhile, in a five-minute exchange. The Court found that this was not adequate "consultation." Moreover, the defendant was "unhappy" with the sentence he received. This demonstrated a reasonable probability that, had the defendant been adequately consulted, he would have requested an appeal. Hence, counsel was ineffective.
Tuesday, March 13, 2007
Dingle: No experts on cause of death not ineffective assistance
In Dingle v. Sec. Dep’t of Corrections, No. 05-13408 (March 8, 2007), the Court held that counsel was not ineffective for not calling any expert witnesses regarding the cause of the victim-baby’s death at a second trial, when, at the defendant’s first trial, counsel had called expert witnesses and this first trial ended with a guilty verdict.
The Court found that the tactical decision not to call expert witnesses was meant to focus on the issue of intent rather the issue of causation, and avoiding drawing attention of the brutality of the baby’s injuries.
The Court found that the tactical decision not to call expert witnesses was meant to focus on the issue of intent rather the issue of causation, and avoiding drawing attention of the brutality of the baby’s injuries.
Tuesday, March 06, 2007
Gilliam: No Brady violation for death row inmate
In Gilliam v. Sec. Dep’t of Corrections, No. 05-16638 (March 6, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
The Court rejected the argument that the Florida state court erred in not finding a Brady violation in the State’s failure to disclose a police report that indicated that the victim was a prostitute. The Court found that this evidence would not have changed the evaluation of whether the defendant lacked the mental state to commit the murder.
The Court also rejected an ineffective assistance of counsel claim based on his counsel’s opening the door to the defendant’s prior rape conviction. The Court declined to resolve whether this was deficient performance, finding that in any event it did not sufficiently compromise the defense.
The Court finally found nothing unreasonable in the Florida courts’ rejection of the argument that counsel was ineffective at the penalty phase, noting, for example, that counsel could "focus on few points in closing" or even forego a closing argument altogether – and counsel did argue that life imprisonment would suffice as punishment, an argument the jury and the sentencing judge did not adopt.
The Court rejected the argument that the Florida state court erred in not finding a Brady violation in the State’s failure to disclose a police report that indicated that the victim was a prostitute. The Court found that this evidence would not have changed the evaluation of whether the defendant lacked the mental state to commit the murder.
The Court also rejected an ineffective assistance of counsel claim based on his counsel’s opening the door to the defendant’s prior rape conviction. The Court declined to resolve whether this was deficient performance, finding that in any event it did not sufficiently compromise the defense.
The Court finally found nothing unreasonable in the Florida courts’ rejection of the argument that counsel was ineffective at the penalty phase, noting, for example, that counsel could "focus on few points in closing" or even forego a closing argument altogether – and counsel did argue that life imprisonment would suffice as punishment, an argument the jury and the sentencing judge did not adopt.
Gilliam: no Brady violation for death row inmate
In Gilliam v. Sec. Dep’t of Corrections, No. 05-16638 (March 6, 2007), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
The Court rejected the argument that the Florida state court erred in not finding a Brady violation in the State’s failure to disclose a police report that indicated that the victim was a prostitute. The Court found that this evidence would not have changed the evaluation of whether the defendant lacked the mental state to commit the murder.
The Court also rejected an ineffective assistance of counsel claim based on his counsel’s opening the door to the defendant’s prior rape conviction. The Court declined to resolve whether this was deficient performance, finding that in any event it did not sufficiently compromise the defense.
The Court finally found nothing unreasonable in the Florida courts’ rejection of the argument that counsel was ineffective at the penalty phase, noting, for example, that counsel could "focus on few points in closing" or even forego a closing argument altogether – and counsel did argue that life imprisonment would suffice as punishment, an argument the jury and the sentencing judge did not adopt.
The Court rejected the argument that the Florida state court erred in not finding a Brady violation in the State’s failure to disclose a police report that indicated that the victim was a prostitute. The Court found that this evidence would not have changed the evaluation of whether the defendant lacked the mental state to commit the murder.
The Court also rejected an ineffective assistance of counsel claim based on his counsel’s opening the door to the defendant’s prior rape conviction. The Court declined to resolve whether this was deficient performance, finding that in any event it did not sufficiently compromise the defense.
The Court finally found nothing unreasonable in the Florida courts’ rejection of the argument that counsel was ineffective at the penalty phase, noting, for example, that counsel could "focus on few points in closing" or even forego a closing argument altogether – and counsel did argue that life imprisonment would suffice as punishment, an argument the jury and the sentencing judge did not adopt.
Taylor: Fictional robbery can violate Hobbs Act
In U.S. v. Taylor, No. 05-14652 (March 6, 2007), the Court held that a Hobbs Act conspiracy by means of robbery can be established even though the object of the planned robbery, cocaine, did not exist, because the robbery was a sting set up by government agents and confidential informants.
The Court held that the fact that the intended victims and narcotics were fictional was irrelevant to whether the Hobbs Act was violated. The interstate nexus was sufficient to establish a violation.
The Court held that the fact that the intended victims and narcotics were fictional was irrelevant to whether the Hobbs Act was violated. The interstate nexus was sufficient to establish a violation.
Monday, March 05, 2007
Gordon: Lawrence resolves habeas untimeliness
In Gordon v. Dep’t of Corrections, No. 06-15783 (March 1, 2007), the Court affirmed the denial of a federal habeas petition on grounds that it was untimely under the AEDPA.
The petitioner had relied "on the hope, now forsaken, that the Supreme Court in reviewing [the Eleventh Circuit’s] Lawrence [v. Florida] decision would provide him with some basis for relief." That hope was forsaken because the Supreme Court affirmed the Eleventh Circuit’s holding. Consequently, the petitioner lost on all his arguments. The statute of limitations is not equitably tolled when the failure to file on time is the fault of capital case counsel specially appointed and supervised by Florida courts. Further, the statute of limitations is not tolled during the time a petition for certiorari is pending before the U.S. Supreme Court in state collateral proceedings. The failure of his court-appointed counsel to file more promptly did not constitute an impediment to filing by State action.
The petitioner had relied "on the hope, now forsaken, that the Supreme Court in reviewing [the Eleventh Circuit’s] Lawrence [v. Florida] decision would provide him with some basis for relief." That hope was forsaken because the Supreme Court affirmed the Eleventh Circuit’s holding. Consequently, the petitioner lost on all his arguments. The statute of limitations is not equitably tolled when the failure to file on time is the fault of capital case counsel specially appointed and supervised by Florida courts. Further, the statute of limitations is not tolled during the time a petition for certiorari is pending before the U.S. Supreme Court in state collateral proceedings. The failure of his court-appointed counsel to file more promptly did not constitute an impediment to filing by State action.
Wednesday, February 28, 2007
Perez-Oliveros: Importation is continuous until destination reached
In U.S. v. Perez-Oliveros, No. 06-12757 (Feb. 22, 2007), the Court affirmed the conviction and sentence of a defendant convicted of methamphetamine trafficking.
The Court affirmed the sentence enhancement under USSG § 2D1.1(b)(4), which calls for a two-level increase if the offense involved the importation of methamphetamine. The Court noted that from the fact of Perez’ truck having crossed the Mexican border 14 hours prior to Perez’ arrest, the sentencing court could infer that the methamphetamine was in Perez’ truck when it crossed the border. The Court also rejected the argument that no evidence showed Perez was in the truck when it crossed the border. The Court pointed out that the enhancement applies if the offense "involved" importation. The Court also rejected the argument that the importation had ended by the time Perez began driving the truck. The Court noted that importation is a continuous crime that is not complete until the controlled substance reaches its final destination point, which in this case was Mobile, Alabama, where Perez was destined.
The Court affirmed the sentence enhancement under USSG § 2D1.1(b)(4), which calls for a two-level increase if the offense involved the importation of methamphetamine. The Court noted that from the fact of Perez’ truck having crossed the Mexican border 14 hours prior to Perez’ arrest, the sentencing court could infer that the methamphetamine was in Perez’ truck when it crossed the border. The Court also rejected the argument that no evidence showed Perez was in the truck when it crossed the border. The Court pointed out that the enhancement applies if the offense "involved" importation. The Court also rejected the argument that the importation had ended by the time Perez began driving the truck. The Court noted that importation is a continuous crime that is not complete until the controlled substance reaches its final destination point, which in this case was Mobile, Alabama, where Perez was destined.
Yost: Attempt means beginning to make arrangements
In U.S. v. Yost, No. 06-10911 (Feb. 26, 2007), the Court affirmed the conviction of a defendant convicted of attempt to use the Internet to entice a minor to engage in criminal sexual activity, in violation of 18 U.S.C. § 2422(b), rejected Yost’s arguments that the evidence was insufficient to convict.
The Court found that Yost satisfied the intent element of the attempt offense when he initiated contact with two (undercover agents posing as) underage girls, was told they were under-age, and repeatedly ask them to engage in oral sex.
The Court further found that Yost satisfied the "substantial step" element of the offense when he engaged in conduct which strongly corroborates the required culpability. Here, even though Yost never arrived at the agreed meeting place, he "crossed the line" when he made arrangements to meet, and took steps enticing the minors to engage in criminal sexual activity.
The Court found that Yost satisfied the intent element of the attempt offense when he initiated contact with two (undercover agents posing as) underage girls, was told they were under-age, and repeatedly ask them to engage in oral sex.
The Court further found that Yost satisfied the "substantial step" element of the offense when he engaged in conduct which strongly corroborates the required culpability. Here, even though Yost never arrived at the agreed meeting place, he "crossed the line" when he made arrangements to meet, and took steps enticing the minors to engage in criminal sexual activity.
Wednesday, February 21, 2007
Patrick: Loss amount wrong
In U.S. v. Patrick, No. 05-17111 (Feb. 20, 2007), the Court reversed the conviction of a defendant convicted of embezzlement.
The district court based its sentence on the estimated loss of $1.4 million, a number based on the tax liability of the victim of Patrick’s embezzlement – but a liability "unconnected to Patrick in any way." Further, the loss amount included amounts that, as the government conceded, should not have been included. The judgment was therefore vacated and reversed.
The district court based its sentence on the estimated loss of $1.4 million, a number based on the tax liability of the victim of Patrick’s embezzlement – but a liability "unconnected to Patrick in any way." Further, the loss amount included amounts that, as the government conceded, should not have been included. The judgment was therefore vacated and reversed.
Evans: Anthrax hoax not serious violent felony
In U.S. v. Evans, No. 05-14498 (Feb. 16, 2007), the Court affirmed in part and reversed in part a sentence imposed on a defendant who, while a state inmate serving a 100-year sentence, committed an anthrax hoax by mailing a letter with a harmless powder substance to the Pensacola federal courthouse.
The Court found no plain error in the acceptance of a guilty plea for violations of 18 U.S.C. §§ 2332a and 876(c), which criminalize threatening to use a weapon of mass destruction, and threatening to injury by mail. Evans claimed that these statute involved only threats of a future act, as opposed to an immediate threat. The Court sided with three Circuits to have considered this issue, and held that the statutes did not required threats of a future act. For this reason, the guilty plea was valid.
The Court agreed with Evans, however, that his anthrax hoax did not qualify as a "serious violent felony" for purposes of triggering the mandatory life sentence under 18 U.S.C. § 35599c)(2)(F). The government claimed that the arterial blood draws which medical personnel may perform on potentially exposed persons, as well as the physical force used in evacuating a building both provided the element of physical force necessary for a serious violent felony. The Court rejected this argument as over-broad, transforming virtually any crime into a serious violent felony, as there always some risk that police will use force during arrest. Moreover, the new statute criminalizing anthrax hoaxes establishes a maximum 5 year punishment, below the 10-year threshold for "serious violent felonies" – further confirming that this crime should not qualify.
The Court found no plain error in the acceptance of a guilty plea for violations of 18 U.S.C. §§ 2332a and 876(c), which criminalize threatening to use a weapon of mass destruction, and threatening to injury by mail. Evans claimed that these statute involved only threats of a future act, as opposed to an immediate threat. The Court sided with three Circuits to have considered this issue, and held that the statutes did not required threats of a future act. For this reason, the guilty plea was valid.
The Court agreed with Evans, however, that his anthrax hoax did not qualify as a "serious violent felony" for purposes of triggering the mandatory life sentence under 18 U.S.C. § 35599c)(2)(F). The government claimed that the arterial blood draws which medical personnel may perform on potentially exposed persons, as well as the physical force used in evacuating a building both provided the element of physical force necessary for a serious violent felony. The Court rejected this argument as over-broad, transforming virtually any crime into a serious violent felony, as there always some risk that police will use force during arrest. Moreover, the new statute criminalizing anthrax hoaxes establishes a maximum 5 year punishment, below the 10-year threshold for "serious violent felonies" – further confirming that this crime should not qualify.
Koblan: Death moots appeal
In U.S. v. Koblan, No. 05-13038 (Feb. 16, 2007), the Court reaffirmed the rule that, when a criminal defendant dies while an appeal is still pending, the appeal must be dismissed as moot, and the judgment must be vacated by the district court. The Court held that this rule applied even when, as here, the judgment included a sizeable restitution order in favor of the defendant’s victims. The Court noted that the victims could still bring a civil suit against the defendant’s estate. The Court recognized a circuit split on this issue.
Wednesday, February 14, 2007
Madison: Enhancement for sentence for Pimp's use of force to keep prostitute in employ
In U.S. v. Madison, No. 06-11914 (Feb. 12, 2007), the Court affirmed the use, by cross-reference, of a criminal sex abuse sentence enhancement under USSG § 2A3.1, for a defendant who pled guilty to sex trafficking by force.
The defendant argued that the sentence enhancement applied in cases of forcible rape, not for using violence (as he did) to keep a prostitute in his employ.
The Court recognized that because the Guideline provision was amended in 2004, its prior caselaw was not applicable. However, under the current law, the application of the cross-reference was correct. The use of fear and violence to keep a person in one’s employ to commit sex acts qualified as the use of force, and therefore qualified for the cross-reference enhancement.
The defendant argued that the sentence enhancement applied in cases of forcible rape, not for using violence (as he did) to keep a prostitute in his employ.
The Court recognized that because the Guideline provision was amended in 2004, its prior caselaw was not applicable. However, under the current law, the application of the cross-reference was correct. The use of fear and violence to keep a person in one’s employ to commit sex acts qualified as the use of force, and therefore qualified for the cross-reference enhancement.
Watkins: Solicitation Sentence reduction can be fact-intensive
In U.S. v. Watkins, No. 05-15444 (Feb. 8, 2007) (Carnes, Marcus, Kravitch), the Court held that USSG § 2X1.1(b), which provides for a three-level decrease in the base offense level for solicitation offenses, does not apply when the circumstances demonstrate to the defendant that the person solicited was about to complete the substantive offense.
Watkins solicited a person to commit arson. Unbeknownst to him, the person was an undercover police agent. At sentencing, the district court declined to reduce the sentence pursuant to § 2X1.1(b) for solicitation, because, from Watkins’ perspective, everything was done to successfully complete the arson.
Reversing, the Court held that the relevant test was whether the person solicited had taken all the crucial steps necessary to demonstrate to the defendant that the offense was about to be completed. Here, more fact-finding was necessary to determine whether the undercover agent’s actions made it clear to Watkins that the agent was about to complete the offense. The Court therefore remanded for resentencing, noting that post-Booker, the district court was not bound by the attempt guideline.
Watkins solicited a person to commit arson. Unbeknownst to him, the person was an undercover police agent. At sentencing, the district court declined to reduce the sentence pursuant to § 2X1.1(b) for solicitation, because, from Watkins’ perspective, everything was done to successfully complete the arson.
Reversing, the Court held that the relevant test was whether the person solicited had taken all the crucial steps necessary to demonstrate to the defendant that the offense was about to be completed. Here, more fact-finding was necessary to determine whether the undercover agent’s actions made it clear to Watkins that the agent was about to complete the offense. The Court therefore remanded for resentencing, noting that post-Booker, the district court was not bound by the attempt guideline.
Tuesday, February 06, 2007
Malol: Enhancement for Violating Order Requires Final Agency Action
In U.S. v. Malol, No. 05-10688 (Feb. 2, 2007), the Court affirmed part of the sentence and vacated part of it, for a defendant convicted of frauds arising out of his practice of increasing the moving costs for customers after giving them a lower initial estimate.
The Court rejected the argument that the prosecution improperly used a summary chart in evidence. The Court found that even if the summary chart was improperly admitted, any error was harmless because of the overwhelming victim testimony of the defendant’s practice of inflating moving costs.
The Court also rejected the challenge to the over $1 million loss calculation. The jury found that the fraud amount exceeded $1 million, beyond a reasonable doubt. The district court could therefore find that this amount was exceeded, by a preponderance of the evidence.
The Court, however, reversed the sentence enhancement based on the commission of a fraud in violation of an order, pursuant to USSG § 2B1.1(b)(7). The Court noted that the administrative body in question, the Federal Motor Carrier Safety Administration, never held a hearing regarding Malol’s conduct, and never adjudicated his conduct; it merely sent out a notice that Malol’s conduct might be illegal. It was therefore improper to impose a sentence enhancement because there was no final agency action.
The Court rejected the argument that the prosecution improperly used a summary chart in evidence. The Court found that even if the summary chart was improperly admitted, any error was harmless because of the overwhelming victim testimony of the defendant’s practice of inflating moving costs.
The Court also rejected the challenge to the over $1 million loss calculation. The jury found that the fraud amount exceeded $1 million, beyond a reasonable doubt. The district court could therefore find that this amount was exceeded, by a preponderance of the evidence.
The Court, however, reversed the sentence enhancement based on the commission of a fraud in violation of an order, pursuant to USSG § 2B1.1(b)(7). The Court noted that the administrative body in question, the Federal Motor Carrier Safety Administration, never held a hearing regarding Malol’s conduct, and never adjudicated his conduct; it merely sent out a notice that Malol’s conduct might be illegal. It was therefore improper to impose a sentence enhancement because there was no final agency action.
Stewart: No Deficient Failure to Present Mitigating Evidence
In Stewart v. Sec’t, Dept. of Corrections, No. 06-11684 (Jan. 31, 2007), the Court affirmed the denial of habeas corpus relief to a Florida death row inmate convicted of a 1985 murder.
The Court rejected the argument that counsel was ineffective in failing to put on sufficient mitigating evidence regarding the abuse Stewart suffered during his upbringing. The Court found that counsel supplied the mental health expert with ample evidence, and that Stewart withheld other evidence from trial counsel. The Court also noted the mental health expert’s testimony at a state post-conviction hearing that the new evidence "wouldn’t have made any difference" in his final opinion.
The Court also found no deficient performance in the defense’s failure to present evidence of substance and alcohol abuse by the defendant, noting that this would have weakened the argument that tragic family circumstances set in motion Stewart’s violent behavior.
The Court rejected the argument that counsel was ineffective in failing to put on sufficient mitigating evidence regarding the abuse Stewart suffered during his upbringing. The Court found that counsel supplied the mental health expert with ample evidence, and that Stewart withheld other evidence from trial counsel. The Court also noted the mental health expert’s testimony at a state post-conviction hearing that the new evidence "wouldn’t have made any difference" in his final opinion.
The Court also found no deficient performance in the defense’s failure to present evidence of substance and alcohol abuse by the defendant, noting that this would have weakened the argument that tragic family circumstances set in motion Stewart’s violent behavior.
Friday, February 02, 2007
Spottsville: Equitable Tolling for Misled Habeas Petitioner
In Spottsville v. Terry, No. 05-12656 (Feb. 1, 2007), the Court held that a habeas petitioner had been misled by a written order of a court as to his filing deadline and was therefore entitled to equitable tolling of his habeas petition.
While incarcerated in Georgia and seeking post-conviction relief, Spottsville was given incorrect instructions by a state court as to where to file a petition seeking appellate relief. As a result, his petition was dismissed in the Georgia courts. Further, once Spottsville filed for federal habeas relief, the time period for filing the petition had lapsed, because his case was not "properly filed" in Georgia courts during the relevant time period.
The Court held that although Spottsville’s federal habeas petition was time-barred under the AEDPA, the doctrine of "equitable tolling" applied, because the untimeliness of the federal habeas petition was due to the misleading order the Georgia state court. The Court therefore reversed the dismissal of the petition.
While incarcerated in Georgia and seeking post-conviction relief, Spottsville was given incorrect instructions by a state court as to where to file a petition seeking appellate relief. As a result, his petition was dismissed in the Georgia courts. Further, once Spottsville filed for federal habeas relief, the time period for filing the petition had lapsed, because his case was not "properly filed" in Georgia courts during the relevant time period.
The Court held that although Spottsville’s federal habeas petition was time-barred under the AEDPA, the doctrine of "equitable tolling" applied, because the untimeliness of the federal habeas petition was due to the misleading order the Georgia state court. The Court therefore reversed the dismissal of the petition.
Ramirez: Consensual Encounter, not an Illegal Detention
In U.S. v. Ramirez, No. 05-12765 (Feb. 1, 2007), the Court affirmed the denial of a motion to suppress, holding that the police did not detain Ramirez in violation of his Fourth Amendment rights.
Ramirez was pulled over for a traffic infraction. After police had determined that he had no outstanding warrants, and after they had issued him a citation and handed him back his papers, a police officer asked Ramirez if he was carrying anything illegal in the car. Ramirez consented to a search of his car, in which 7 kilos of cocaine were found.
Rejecting the argument that the police officer’s question constituted an unreasonable detention, the Court held that at this point the traffic stop had converted into a "consensual encounter." A reasonable person would have felt free to leave and to decline the request for more information.
Ramirez was pulled over for a traffic infraction. After police had determined that he had no outstanding warrants, and after they had issued him a citation and handed him back his papers, a police officer asked Ramirez if he was carrying anything illegal in the car. Ramirez consented to a search of his car, in which 7 kilos of cocaine were found.
Rejecting the argument that the police officer’s question constituted an unreasonable detention, the Court held that at this point the traffic stop had converted into a "consensual encounter." A reasonable person would have felt free to leave and to decline the request for more information.
Tuesday, January 30, 2007
Evans: Enticing Commercial Sex is Interstate Commerce
In U.S. v. Evans, No. 06-10907 (Jan. 30, 2007), the Court held that the facts alleged in an indictment for enticing a minor to engage in commercial sex sufficed to establish the interstate jurisdictional nexus.
The defendant claimed that all the conduct that related to his using a minor in commercial sex occurred in South Florida. Disagreeing, the Court pointed out that the Supreme Court upheld a federal criminalizing the purely intrastate growing of marijuana for medicinal purposes, on the ground that this was justified by Congress’ need to broadly regulate interstate commerce in this controlled substance. Here, Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce, and the Court found that this finding was not irrational. Evans’ acts in South Florida contributed to the market that Congress’ comprehensive plan sought to stop. The Court further noted Evans’ use of hotels which service interstate travelers, and use of condoms that traveled in interstate commerce further evidence the substantial effects on interstate commerce.
The Court further rejected Evans’ argument that he had not used instrumentalities of interstate commerce, pointing out that he had used a cell phone, and that cell phones are by their very nature interstate instrumentalities – even in the absence of evidence that they were used to make out-of-state calls.
The defendant claimed that all the conduct that related to his using a minor in commercial sex occurred in South Florida. Disagreeing, the Court pointed out that the Supreme Court upheld a federal criminalizing the purely intrastate growing of marijuana for medicinal purposes, on the ground that this was justified by Congress’ need to broadly regulate interstate commerce in this controlled substance. Here, Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce, and the Court found that this finding was not irrational. Evans’ acts in South Florida contributed to the market that Congress’ comprehensive plan sought to stop. The Court further noted Evans’ use of hotels which service interstate travelers, and use of condoms that traveled in interstate commerce further evidence the substantial effects on interstate commerce.
The Court further rejected Evans’ argument that he had not used instrumentalities of interstate commerce, pointing out that he had used a cell phone, and that cell phones are by their very nature interstate instrumentalities – even in the absence of evidence that they were used to make out-of-state calls.
Hassoun: Padilla Count Reinstated
In U.S. v. Hassoum, No. 04-60001 (Jan. 30, 2007), the Court (Edmondson, Tjoflat, Gibson b.d.) reinstated a count of the indictment which had been dismissed by the district court on multiplicity grounds.
The indictment charged three interrelated offenses: violating 18 U.S.C. § 956(a)(1) by conspiring to commit acts of murder, kidnapping and maiming; violating 18 U.S.C. § 2339A(a) by providing material support and resources in preparation for a violation of § 956(a)(1); and violating 18 U.S.C. § 371 by conspiring to violate § 2339A(a).
The Court noted that multiplicity challenges are reviewed under Blockburger v. U.S., 284 U.S. 299 (1932), which holds that cumulative punishment may not be imposed under several statutes unless each statutory provision requires proof of an additional fact that the other does not.
The Court found that the legislative history regarding § 2339A(a) did not shed light on the question, and that it would therefore examine the elements of the statutes at issue.
The Court pointed out that the Blockburger analysis typically does not turn on the specific facts alleged in the indictment. Here, each of the three counts charged a separate statutory violation, and none merged into another as a lesser-included offense. The § 956(a)(1) count required proof that the defendant conspired to commit acts constituting murder, kidnapping and maiming, the § 371 count required proof of a conspiracy to provide material support in violation of § 2339A(a), and the § 2339A(a) count required proof of providing material support for a violation of § 956(a)(1). As a result, the counts were not multiplicitous.
The Court recognized a scenario in which a complete overlap would exist between the conspiracy counts of the indictment, for example, if the government proved that the defendants provided material support intending that it be used to violate § 956(a)(1), in which case the same evidence would support proof of two offenses (§ 2339A(a) and § 956(a)(1)). But this "mere possibility" did not alter the analysis. The question was: "does a scenario exist where the hypothetical defendant might violate one section without violating the other?" Here this scenario existed, because the defendants might have provided material support in preparation for the § 956 conspiracy, but without being guilty of the § 956 conspiracy. Hence, no multiplicity problem arose. [Cf. Double Jeopardy-Post Blakely, 41 Am. Crim. L. Rev. 1373 (2004) (Double Jeopardy should ask whether a person’s actual blameworthy conduct is being punished twice, not whether two provisions in the abstract are "conceptually distinct")].
The indictment charged three interrelated offenses: violating 18 U.S.C. § 956(a)(1) by conspiring to commit acts of murder, kidnapping and maiming; violating 18 U.S.C. § 2339A(a) by providing material support and resources in preparation for a violation of § 956(a)(1); and violating 18 U.S.C. § 371 by conspiring to violate § 2339A(a).
The Court noted that multiplicity challenges are reviewed under Blockburger v. U.S., 284 U.S. 299 (1932), which holds that cumulative punishment may not be imposed under several statutes unless each statutory provision requires proof of an additional fact that the other does not.
The Court found that the legislative history regarding § 2339A(a) did not shed light on the question, and that it would therefore examine the elements of the statutes at issue.
The Court pointed out that the Blockburger analysis typically does not turn on the specific facts alleged in the indictment. Here, each of the three counts charged a separate statutory violation, and none merged into another as a lesser-included offense. The § 956(a)(1) count required proof that the defendant conspired to commit acts constituting murder, kidnapping and maiming, the § 371 count required proof of a conspiracy to provide material support in violation of § 2339A(a), and the § 2339A(a) count required proof of providing material support for a violation of § 956(a)(1). As a result, the counts were not multiplicitous.
The Court recognized a scenario in which a complete overlap would exist between the conspiracy counts of the indictment, for example, if the government proved that the defendants provided material support intending that it be used to violate § 956(a)(1), in which case the same evidence would support proof of two offenses (§ 2339A(a) and § 956(a)(1)). But this "mere possibility" did not alter the analysis. The question was: "does a scenario exist where the hypothetical defendant might violate one section without violating the other?" Here this scenario existed, because the defendants might have provided material support in preparation for the § 956 conspiracy, but without being guilty of the § 956 conspiracy. Hence, no multiplicity problem arose. [Cf. Double Jeopardy-Post Blakely, 41 Am. Crim. L. Rev. 1373 (2004) (Double Jeopardy should ask whether a person’s actual blameworthy conduct is being punished twice, not whether two provisions in the abstract are "conceptually distinct")].
Tuesday, January 23, 2007
Ivory: Second degree rape is "crime of violence"
In U.S. v. Ivory, No. 06-10895 (Jan. 17, 2007), the Court held that a second degree rape conviction under Alabama State law counted as a "crime of violence" for purposes of the career criminal enhancement of the Guidelines. Second degree rape is sex with a person under the age of 16.
The Court noted that the definition of "crime of violence" involved the use of "physical force." The Court further noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Under Alabama law, a person under the age of 16 is deemed to be incapable of giving consent to sexual penetration. Consequently, the Court concluded that second degree rape involved the use of physical force.
Alternatively, the Court found that second degree rape presented a risk of the use of physical force, and therefore qualified as a "crime of violence." The Court recognized a Circuit conflict on this aspect of its holding.
The Court noted that the definition of "crime of violence" involved the use of "physical force." The Court further noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Under Alabama law, a person under the age of 16 is deemed to be incapable of giving consent to sexual penetration. Consequently, the Court concluded that second degree rape involved the use of physical force.
Alternatively, the Court found that second degree rape presented a risk of the use of physical force, and therefore qualified as a "crime of violence." The Court recognized a Circuit conflict on this aspect of its holding.
Wednesday, January 17, 2007
Turner: Bruton violation harmless; 240-months ok for theft
In U.S. v. Turner, No. 05-14388 (Jan. 11, 2007), the Court affirmed theft convictions, and a 240-month sentence for said convictions.
The Court recognized that Bruton errors occurred when the trial court allowed two witnesses to testify about statements made by the defendant’s co-defendant spouse – statements which incriminated the defendant. However, because defense counsel failed to contemporaneously object, the Court reviewed the matter for plain error. In light of the ovewhelming evidence of guilt, the Court found no violation of Turner’s substantial rights, and therefore no plain error.
The Guideline sentence was 51-63 months, but the sentencing court imposed a 240-month sentence, exercising its discretion under 18 U.S.C. § 3553(a). The court based its decision on recorded phone conversations in which a co-defendant said he would have murdered the federal agents had he been present at the time of the arrest. The co-defendants also discussed how if they’d escaped they could have left the country. Reviewing the sentence for reasonableness, the Court found that the district court’s finding regarding a lack of remorse, and the other § 3553(a) factors it addressed, supported the 240-month sentence.
The Court recognized that Bruton errors occurred when the trial court allowed two witnesses to testify about statements made by the defendant’s co-defendant spouse – statements which incriminated the defendant. However, because defense counsel failed to contemporaneously object, the Court reviewed the matter for plain error. In light of the ovewhelming evidence of guilt, the Court found no violation of Turner’s substantial rights, and therefore no plain error.
The Guideline sentence was 51-63 months, but the sentencing court imposed a 240-month sentence, exercising its discretion under 18 U.S.C. § 3553(a). The court based its decision on recorded phone conversations in which a co-defendant said he would have murdered the federal agents had he been present at the time of the arrest. The co-defendants also discussed how if they’d escaped they could have left the country. Reviewing the sentence for reasonableness, the Court found that the district court’s finding regarding a lack of remorse, and the other § 3553(a) factors it addressed, supported the 240-month sentence.
Newsome: Public Safety Exception Justifies Gun Seizure
In U.S. v. Newsome, No. 06-11181 (Jan. 16, 2007), the Court (Birch, Pryor & Covington b.d.) held that the public safety exception to Miranda and to the Fourth Amendment applied, and therefore affirmed the denial of a motion to suppress a gun.
The defendant was arrested in a motel room, in which police thought he was hiding with a girl friend. Upon arrest, and placing the defendant in handcuffs, the police asked him if there was "anything or anyone in the room that [police] should know about." Newsome told police he had a gone "over there" and led the police to a bag where the pistol was located. This exchange all occurred before the defendant was given his Miranda warnings.
The Court held that the "public safety" exception of New York v. Quarles, 467 U.S. 649 (1984) applied. The police were under the impression there was someone else in the room, and thought they were in danger. The police were entitled to "neutralize" the threat by finding the gun.
The Court also found no Fourth Amendment violation, because exigent circumstances necessitated the gun’s seizure.
The Court also rejected Newsome’s attempt to obtain a new trial based on the prosecutor’s violation of a court order when, despite a court order not to refer to a statement by Newsome’s wife that he had shot her, the prosecutor mentioned this statement in his opening statement. The Court noted the trial court’s curative instruction and the independent evidence of guilt which made any error harmless.
The defendant was arrested in a motel room, in which police thought he was hiding with a girl friend. Upon arrest, and placing the defendant in handcuffs, the police asked him if there was "anything or anyone in the room that [police] should know about." Newsome told police he had a gone "over there" and led the police to a bag where the pistol was located. This exchange all occurred before the defendant was given his Miranda warnings.
The Court held that the "public safety" exception of New York v. Quarles, 467 U.S. 649 (1984) applied. The police were under the impression there was someone else in the room, and thought they were in danger. The police were entitled to "neutralize" the threat by finding the gun.
The Court also found no Fourth Amendment violation, because exigent circumstances necessitated the gun’s seizure.
The Court also rejected Newsome’s attempt to obtain a new trial based on the prosecutor’s violation of a court order when, despite a court order not to refer to a statement by Newsome’s wife that he had shot her, the prosecutor mentioned this statement in his opening statement. The Court noted the trial court’s curative instruction and the independent evidence of guilt which made any error harmless.
Thursday, January 11, 2007
Odili: Treaty Transfer sentence upheld
In Odili v. U.S. Parole Comm’n, No. 05-12717 (Jan. 10, 2007), the Court rejected a defendant’s challenge to the sentence imposed by the U.S. Parole Commission, pursuant to a treaty transfer, on a U.S. citizen transferred from Panama after serving two years of his 100-month sentence for drug trafficking. The Parole Commission had reduced the sentence to 81 months total time, to be followed by a period of 60 months supervised release or up to a total which, combined with the term of incarceration, would equal the original 100 month sentence. The Parole Commission’s sentence reduction from 100 to 81 months reflected in part Odili’s mistreatment while in a Panamanian jail, and his substantial assistance to authorities.
The Court rejected Odili’s claim that his testimony established that he was entitled to a mitigating role downward sentence adjustment. Citing U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), the Court noted that the Parole Commission was free to reject Odili’s testimony for lack of credibility.
The Court also rejected the argument that the Parole Commission should have also reduced the term of supervised release when it reduced the term of incarceration. The Court found no violation of any statute in the Commission’s failure to do so.
The Court rejected Odili’s change to the drug quantity determination, noting that Odili had admitted the quantity.
Finally, the Court rejected the argument that the Parole Commission erred in treating the Guidelines as mandatory, post-Booker. The Court agreed that a Parole Commission treaty transfer sentence determination should treat the Guidelines as advisory. However, the Court found that the Parole Commission had in fact treated the Guidelines as advisory. Further, rejecting Odili’s contrary contention, the Court found the sentence to be reasonable.
The Court rejected Odili’s claim that his testimony established that he was entitled to a mitigating role downward sentence adjustment. Citing U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), the Court noted that the Parole Commission was free to reject Odili’s testimony for lack of credibility.
The Court also rejected the argument that the Parole Commission should have also reduced the term of supervised release when it reduced the term of incarceration. The Court found no violation of any statute in the Commission’s failure to do so.
The Court rejected Odili’s change to the drug quantity determination, noting that Odili had admitted the quantity.
Finally, the Court rejected the argument that the Parole Commission erred in treating the Guidelines as mandatory, post-Booker. The Court agreed that a Parole Commission treaty transfer sentence determination should treat the Guidelines as advisory. However, the Court found that the Parole Commission had in fact treated the Guidelines as advisory. Further, rejecting Odili’s contrary contention, the Court found the sentence to be reasonable.
Friday, January 05, 2007
Perez: Defendant Statements to Pre-Trial Services Are Inadmissible to show guilt
In U.S. v. Perez, No. 05-12971 (Dec. 28, 2006), the Court rejected the argument that a Brady violation occurred when the government failed to disclose to the defendant that it had promised to reduce his wife’s sentence in exchange for her testimony against him. The Court noted that Perez was aware of the reasons his wife testified at trial.
The Court also rejected the argument that Perez should have been given a continuance before trial in order to have more time to examine recordings that were disclosed five days before trial. The Court said that counsel was able to spend 20 hours reviewing the recordings which was sufficient time for him to notice any helpful statements for the defense.
The Court agreed with Perez that the district court in allowing a pre-trial services officer to testify for the prosecution, in violation of 18 U.S.C. § 3153(c)(3), which requires materials disclosed to this officer to remain confidential. Such information cannot be admitted at trial if it goes "to the issue of guilt." Here, the government called the officer to establish Perez’ cell phone number, and his involvement in illegal drug transactions. However, the Court found no "plain error" because other evidence properly admitted at trial independently established Perez’ cell phone number.
The Court also rejected the argument that Perez should have been given a continuance before trial in order to have more time to examine recordings that were disclosed five days before trial. The Court said that counsel was able to spend 20 hours reviewing the recordings which was sufficient time for him to notice any helpful statements for the defense.
The Court agreed with Perez that the district court in allowing a pre-trial services officer to testify for the prosecution, in violation of 18 U.S.C. § 3153(c)(3), which requires materials disclosed to this officer to remain confidential. Such information cannot be admitted at trial if it goes "to the issue of guilt." Here, the government called the officer to establish Perez’ cell phone number, and his involvement in illegal drug transactions. However, the Court found no "plain error" because other evidence properly admitted at trial independently established Perez’ cell phone number.
Campbell: Jones procedures apply for supervised release revocation
In U.S. v. Campbell, No. 06-12578 (Jan. 3, 2007), the Court held that U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990) applies to supervised release revocation proceedings, and that accordingly a district court after imposing sentence should elicit fully-articulated objections to the court’s findings of facts and conclusions of law, and the manner in which the sentence was imposed.
At the conclusion of Campbell’s supervised release revocation proceedings, after imposing a 24 months sentence, the district court simply asked "Is there anything further?" The Court never discussed the advisory Guidelines during the proceeding.
The Court vacated the sentence, finding that the district court had failed to elicit objections to the sentence, and that based on the record the Court could not determine whether the district court had considered the range established under the Guidelines. The Court therefore also could not determine whether the sentence was reasonable, and vacated the sentence and remanded the case for resentencing in accordance with Jones.
At the conclusion of Campbell’s supervised release revocation proceedings, after imposing a 24 months sentence, the district court simply asked "Is there anything further?" The Court never discussed the advisory Guidelines during the proceeding.
The Court vacated the sentence, finding that the district court had failed to elicit objections to the sentence, and that based on the record the Court could not determine whether the district court had considered the range established under the Guidelines. The Court therefore also could not determine whether the sentence was reasonable, and vacated the sentence and remanded the case for resentencing in accordance with Jones.
Wednesday, December 27, 2006
Evans: Victim's fax part of "lulling" of fraud perpetrator
In U.S. v. Evans, No. 05-10624 (Dec. 26, 2006), the Court held that the jury was entitled to find that a fax from a fraud victim to the perpetrator of a fraud was"lulling" activity for purposes of satisfying the wire fraud statute, 18 U.S.C. § 1343.
The Court noted that a communication from a victim can qualify as "lulling." The Court otherwise rejected Evans’ arguments that the fax should not be considered lulling. The Court noted that the fraud scheme – getting a purchaser to continue to send goods to a seller who was, in reality, insolvent – had not yet reached "fruition" since the "lulling" activity was still going on, as the seller failed to alert the buyer of its true financial position. Further, here, Evans responded to the victim’s fax, thereby continuing the lulling, and delaying the discovery of his fraud by authorities. Further, the indictment need not have alleged that Evans intended from the inception of his fraud to engage in lulling activity.
The Court noted that a communication from a victim can qualify as "lulling." The Court otherwise rejected Evans’ arguments that the fax should not be considered lulling. The Court noted that the fraud scheme – getting a purchaser to continue to send goods to a seller who was, in reality, insolvent – had not yet reached "fruition" since the "lulling" activity was still going on, as the seller failed to alert the buyer of its true financial position. Further, here, Evans responded to the victim’s fax, thereby continuing the lulling, and delaying the discovery of his fraud by authorities. Further, the indictment need not have alleged that Evans intended from the inception of his fraud to engage in lulling activity.
Thompson: 851 notice for 1st trial valid for 2nd trial
In U.S. v. Thompson, No. 05-15052 (Dec. 27, 2006), the Court affirmed the defendant’s convictions for drug and weapons possession, and the life sentence imposed pursuant to 21 U.S.C. § 841 for a defendant with three prior drug felony convictions.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Even though the defendant was not in the apartment in which drugs and guns were found, his papers, including a print out of telephone numbers from his cell phone, were found there.
The Court also rejected the argument that the government did not timely serve him with notice of its intent to seek a sentence enhancement based on prior convictions, as required by 21 U.S.C. § 851(a)(1). The Court noted that Thompson had been served with the notice, in timely fashion, prior to his first trial on the same charges – which ended in a mistrial. This made it unnecessary for the government to refile the notice prior to Thompson’s second trial on these charges. Further, as to certain charges that were newly added to Thompson’s indictment for his second trial, the initial § 851 notice also sufficed. The Court found that this notice gave Thompson adequate notice to challenge the prior convictions, should he have wished to do so, and made him aware of the potential downside of a conviction at trial.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Even though the defendant was not in the apartment in which drugs and guns were found, his papers, including a print out of telephone numbers from his cell phone, were found there.
The Court also rejected the argument that the government did not timely serve him with notice of its intent to seek a sentence enhancement based on prior convictions, as required by 21 U.S.C. § 851(a)(1). The Court noted that Thompson had been served with the notice, in timely fashion, prior to his first trial on the same charges – which ended in a mistrial. This made it unnecessary for the government to refile the notice prior to Thompson’s second trial on these charges. Further, as to certain charges that were newly added to Thompson’s indictment for his second trial, the initial § 851 notice also sufficed. The Court found that this notice gave Thompson adequate notice to challenge the prior convictions, should he have wished to do so, and made him aware of the potential downside of a conviction at trial.
Bohannon: Affirming intent to photograph enhancement
In U.S. v. Bohannon, No. 05-16492 (Dec. 26, 2006), the Court affirmed a 120-month sentence imposed on a defendant convicted of using the internet to entice a minor into sexual activity.
The Court rejected the defendant’s challenge to the facts supporting the enhancement, under USSG § 2G2.1, based on Bohannon’s intention to produce a visual depiction of sexually explicit conduct with a minor. The Court noted that a digital camera was found in the vehicle Bohannon drove to meet with the police officer posing as a 15-year old, and that a search of Bohannon’s home uncovered photographs of minors in various stages of undress. This evidence, the Court found, supported the enhancement.
The Court rejected a reasonableness challenge to the 120-month sentence, noting that the district court’s discussion of the § 3553(a) factors showed it had considered these factors, and that this sentence was below the low-end guideline range of 135 months.
The Court rejected the defendant’s challenge to the facts supporting the enhancement, under USSG § 2G2.1, based on Bohannon’s intention to produce a visual depiction of sexually explicit conduct with a minor. The Court noted that a digital camera was found in the vehicle Bohannon drove to meet with the police officer posing as a 15-year old, and that a search of Bohannon’s home uncovered photographs of minors in various stages of undress. This evidence, the Court found, supported the enhancement.
The Court rejected a reasonableness challenge to the 120-month sentence, noting that the district court’s discussion of the § 3553(a) factors showed it had considered these factors, and that this sentence was below the low-end guideline range of 135 months.
Wednesday, December 20, 2006
Kinard: Anhydrous Ammonia enhancement vacated
In U.S. v. Kinard, No. 06-10043 (Dec. 20, 2006), the Court (Anderson, Barkett, Goldberg. b.d.) reversed a sentence enhancement for defendants convicted manufacture of amphetamine. The enhancement was based on the defendants’ discharge of anhydrous ammonia. However, the applicable Guideline provided for an enhancement only where one of four specified federal environmental statutes were violated. Here, no violation of any of these statutes was established by the government. Accordinly, the Court vacated the enhancement.
Compas-Diaz: Fast-Track Creates No Equal Protection Violation
In U.S. v. Campos-Diaz, No. 05-16082 (Dec. 19, 2006), the Court joined all other Circuits to have considered the issue and held that no equal protection violation occurs when a defendant charged with illegal re-entry into the United States is not given the opportunity to qualify for a lower sentence based on the Attorney General’s "fast-track" disposition program. "The fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources and easing congestion in judicial districts with a high volume of immigration cases."
Tuesday, December 19, 2006
Kennard: Bilking Church of $ Conviction Affirmed
In U.S. v. Kennard, No. 05-12742 (Dec. 15, 2006), the Court affirmed the convictions of two brothers for bilking hundreds of churches and other non-profit organizations out of millions of dollars.
The Court rejected the argument that it was error to admit evidence of – and instruct the jury about -- one defendant’s post-indictment flight. The Court noted that this evidence was relevant because it made the defendant look guilty.
The Court also rejected the argument that it was error to exclude the exculpatory testimony of the defendants’ attorney, taken during an SEC investigation of the case. The Court noted that prior deposition testimony can only be introduced if a witness is unavailable (a condition that was satisfied here) and if the party against whom the testimony was offered had a "similar opportunity" to develop the testimony in the prior proceeding. Here, the defendants’ failed to meet their burden of showing that the SEC lawyers who took the lawyer’s deposition had a sufficient similarity of motives to that of the prosecutors in the brothers’ criminal case.
The Court also rejected a sufficiency of the evidence challenge to a money laundering conspiracy conviction, as well as a claim of a variance between the conspiracy charged and the conspiracy proved at trial.
The Court also rejected a challenge to a deliberate ignorance jury instruction, noting that such error is harmless where, as here, the jury could have convicted based on a defendant’s actual knowledge of the criminality.
The Court further rejected a challenge to a sentence, noting that since the actual 38-month sentence was within the Guideline range, no "substantial rights" were violated, and no "plain error" therefore occurred.
The Court rejected the argument that it was error to admit evidence of – and instruct the jury about -- one defendant’s post-indictment flight. The Court noted that this evidence was relevant because it made the defendant look guilty.
The Court also rejected the argument that it was error to exclude the exculpatory testimony of the defendants’ attorney, taken during an SEC investigation of the case. The Court noted that prior deposition testimony can only be introduced if a witness is unavailable (a condition that was satisfied here) and if the party against whom the testimony was offered had a "similar opportunity" to develop the testimony in the prior proceeding. Here, the defendants’ failed to meet their burden of showing that the SEC lawyers who took the lawyer’s deposition had a sufficient similarity of motives to that of the prosecutors in the brothers’ criminal case.
The Court also rejected a sufficiency of the evidence challenge to a money laundering conspiracy conviction, as well as a claim of a variance between the conspiracy charged and the conspiracy proved at trial.
The Court also rejected a challenge to a deliberate ignorance jury instruction, noting that such error is harmless where, as here, the jury could have convicted based on a defendant’s actual knowledge of the criminality.
The Court further rejected a challenge to a sentence, noting that since the actual 38-month sentence was within the Guideline range, no "substantial rights" were violated, and no "plain error" therefore occurred.
Chandler: No Ineffective Failure to Seek Venue Change
In Chandler v. McDonough, No. 06-11190 (Dec. 18, 2006), the Court rejected a death-row inmate’s claim that his trial counsel rendered ineffective assistance by failing to move for a change of venue. Noting that its en banc decision in U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006) had created a high burden on a party seeking to establish presumed prejudice based on a failure to change venue, the Court stated that it was now difficult to establish the requisite "prejudice" for ineffective assistance in failing to seek a change of venue. The Court also upheld the denial of an evidentiary hearing on the ineffectiveness issue, noting that the written expert report regarding the venue was part of the record, and that the defendant had failed to proffer the evidence he would present at a hearing.
Thursday, December 14, 2006
Bennett: Prior Burglary Convictions Qualify for 924(e)
In U.S. v. Bennett, No. 05-15376 (Dec. 13, 2006), the Court (Black, Hull, Conway b.d.), rejected the defendant’s argument that he was erroneously classified as an armed career criminal.
The Court pointed out that when Bennett pled to guilty to the offense of possession of a firearm by a convicted felon, he admitted to having three prior felony burglary convictions, as charged in the indictment. Further, Bennett never objected to the factual allegations in the PSI, which described his prior offenses as burglaries. The Court held that Bennett waived the argument, by failing to raise it earlier, that the probation officer should not have looked to materials outside specific court documents when assessing his prior criminal convictions.
The Court, however, reversed the offense level portion of the sentence. The Court noted that based on the district court’s finding that the possession of the firearm was not connected with a violent felony, the sentence offense level should have been one level lower. Since this would have resulted in a lower sentence guideline range, and since the sentencing court said it wanted to impose a sentence near the low end of the applicable guideline range, the error was "plain." The Court therefore vacated the sentence.
The Court pointed out that when Bennett pled to guilty to the offense of possession of a firearm by a convicted felon, he admitted to having three prior felony burglary convictions, as charged in the indictment. Further, Bennett never objected to the factual allegations in the PSI, which described his prior offenses as burglaries. The Court held that Bennett waived the argument, by failing to raise it earlier, that the probation officer should not have looked to materials outside specific court documents when assessing his prior criminal convictions.
The Court, however, reversed the offense level portion of the sentence. The Court noted that based on the district court’s finding that the possession of the firearm was not connected with a violent felony, the sentence offense level should have been one level lower. Since this would have resulted in a lower sentence guideline range, and since the sentencing court said it wanted to impose a sentence near the low end of the applicable guideline range, the error was "plain." The Court therefore vacated the sentence.
Monday, December 11, 2006
Cedeno: "loss" amount does not include both repair and fair market value
In U.S. v. Cedeno, No. 05-16616 (Dec. 6, 2006) (Black, Carnes, Barkett), the Court held that the sentencing court erred in its "loss" calculation, and reversed the sentence.
The defendants made off with $1,485,000 worth of watches. The store got the watches back after the police recovered them. The store spent $13,939 repairing the damage some of the watches suffered during the smash-and-grab job. The issue was whether, to calculate the "loss" amount, the cost of the repair should have been added to the value of the watches before any damage. The district did add these two, resulting in a loss amount in excess of $1.5 million, that is, in excess of the original fair value of the watches.
The Court noted that the district court used the wrong guideline in calculating the loss. Further, the correct guideline capped the "loss" amount at fair market value, which, by definition, could not exceed the value of the watches before the smash-and-grab. The Court rejected the district court’s attempt to explain its calculation as being based on "the perspective of the victim." Here, the jewelry store recovered the watches, so the $1.5 million "loss" amount far exceeded its actual loss. The Court also noted that allowing a sentencing court to disregard the recovery of stolen goods would create a "backwards incentive." In any event, this approach made no sense, as it effectively doubled the value of the goods, once for being stolen, and again for being damages or destroyed.
The defendants made off with $1,485,000 worth of watches. The store got the watches back after the police recovered them. The store spent $13,939 repairing the damage some of the watches suffered during the smash-and-grab job. The issue was whether, to calculate the "loss" amount, the cost of the repair should have been added to the value of the watches before any damage. The district did add these two, resulting in a loss amount in excess of $1.5 million, that is, in excess of the original fair value of the watches.
The Court noted that the district court used the wrong guideline in calculating the loss. Further, the correct guideline capped the "loss" amount at fair market value, which, by definition, could not exceed the value of the watches before the smash-and-grab. The Court rejected the district court’s attempt to explain its calculation as being based on "the perspective of the victim." Here, the jewelry store recovered the watches, so the $1.5 million "loss" amount far exceeded its actual loss. The Court also noted that allowing a sentencing court to disregard the recovery of stolen goods would create a "backwards incentive." In any event, this approach made no sense, as it effectively doubled the value of the goods, once for being stolen, and again for being damages or destroyed.
Lorenzo: Post-sentencing rehabilitation cannot count under 3553(a)
In U.S. v. Lorenzo, No. 05-16119 (Dec. 8, 2006) (Pryor, Fay, Reavley), the Court, on a government appeal, reversed a sentence where the district court, on resentencing with the defendant released from prison, had resentenced the defendant to time served, despite a guideline range of 24-30 months (less time served), on the basis of the defendant’s post-release conduct, which showed his ability to maintain a job and be employed in the community.
Reversing, the Court held that § 3553(a)(1), which indicates that "the history and circumstances of the defendant" should be taken into account at sentencing, should not include post-initial sentencing history and characteristics. The Court reasoned that taking post-sentencing conduct into consideration would "inequitably benefit the few defendants with the opportunity for re-sentencing and create unwarranted sentence disparities." In addition, such consideration was at odds with the Policy Statements of the Sentencing Guidelines.
Reversing, the Court held that § 3553(a)(1), which indicates that "the history and circumstances of the defendant" should be taken into account at sentencing, should not include post-initial sentencing history and characteristics. The Court reasoned that taking post-sentencing conduct into consideration would "inequitably benefit the few defendants with the opportunity for re-sentencing and create unwarranted sentence disparities." In addition, such consideration was at odds with the Policy Statements of the Sentencing Guidelines.
Barbour: No right to postconviction counsel
In Barbour v. Haley, No. 06-10920 (Dec. 8, 2006), the Court rejected a claim under 42 U.S.C. § 1983 by indigent Alabama death-sentenced inmates that they had a constitutional right to state-appointed counsel or some form of lesser form of state-provided legal assistance in state post-conviction proceedings.
Relying on Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion), the Court held that death-sentenced inmates had no right to counsel in postconviction proceedings. The Court also held that because the inmates failed to specify the lesser form of legal assistance which they claimed to be entitled to, this aspect of the claim also failed.
Relying on Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion), the Court held that death-sentenced inmates had no right to counsel in postconviction proceedings. The Court also held that because the inmates failed to specify the lesser form of legal assistance which they claimed to be entitled to, this aspect of the claim also failed.
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