Ransfer: Testimony summarizing investigation can raise serious concerns

In U.S. v. Ransfer, No. 12-12956 (April 14, 2014) (Martin, Jordan & Baylson by designation), the Court found insufficient evidence to support convictions for one Hobbs Act robbery, but otherwise affirmed the convictions of defendants convicted of a series of robberies of businesses in Florida. As in its recent decision in U.S. v. Smith, 741 F.3d 1211 (11th Cir. 2013), the Court rejected the argument that the district court should have suppressed evidence obtained as a result of the warrantless installation of a GPS tracking device on a vehicle to track the vehicle’s movements. The Court explained that the police in good faith relied on long-standing Circuit precedent, prior to the Supreme Court’s decision in U.S. v. Jones, that it did not violate the Fourth Amendment to install an electronic device on the outside of a vehicle without a warrant. Because the error would have been harmless in light of other evidence admitted at trial, the Court did not reach the merits of whether it was erroneous to allow a police officer to testify at length, based on hearsay information he gathered during the investigation, about how the investigation proceeded. The Court noted in a footnote that other Circuits “have raised serious concerns with overview witnesses, when an introductory prosecution witness summarizes the findings of an investigation, thereby “painting a picture of guilt before the evidence has been introduced.” The Court found any error would have been harmless because each hearsay statement by the police officer was presented through other evidence, so the jury “would likely have reached the same verdict if [the hearsay testimony] had been excluded.” Turning to the sufficiency of the evidence with regard to one defendant who was charged with acting as a lookout for the robberies, the Court found that the text messages between this defendant and other defendants, the video surveillance, cell phone records, and the fact that his repeated presence at the scene of the robberies could not have been an “innocent coincidence.” As to one robbery, however, the Court found insufficient evidence, because there was no evidence that this defendant was ever inside the store that was robbed, and evidence of his presence in the vicinity was insufficient to convict him for aiding and abetting the robbery.

Davila: Magistrate Judge's "Highly Improper" Comments did not pressure guilty plea

In U.S. v. Davila, Nos. 10-15310 & 11-10224 (April15, 2014), on remand from the Supreme Court, see U.S. v. Davila, 133 S.Ct. 2139 (2013) (a court’s improper participation in plea discussions does not by itself demand automatic vacatur of a plea), the Court held that in light of the “full record” Davila had not established prejudice from a Magistrate Judge’s comments encouraging him to plead guilty, and therefore affirmed the conviction. The Court noted that it was reviewing the issue for plain error because Davila did not object to the Magistrate Judge’s comments. The Court noted that it applied the contemporaneous objection rule even in situations where counsel may have no desire to object. Further, TDavila did not object during the months when he represented himself pro se. The Court noted that the Magistrate Judge’s remarks encouraging Davila to plead guilty constituted error, and the error was plain. But the Court found that the error did not affect Davila’s substantial rights. Citing its recent decision on a similar issue in U.S. v. Castro, the Court determined that Davila pled guilty “to shorten the duration of his inevitable sentence.” Davila stated at his change-of-plea hearing that no one pressured him to plead guilty. The Court found some merit in Davila’s claim that his plea was a “desperate gambit” when everyone seemed aligned against him, but ultimately found that he pled guilty “simply because he had negotiated a better deal” than was initially offered. The Court also noted the lapse of time between the Magistrate Judge’s comments and the guilty plea. Though recognizing that the Magistrate Judge’s comments regarding the desirability of a guilty plea were “emphatic and highly improper,” the Court found that this was not enough to show prejudice, in light of the full record.

Osley: Counsel not ineffective in failing to advise of mandatory minimum

In Osley v. U.S., No. 11-14989 (April 11, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 that alleged that counsel was ineffective in failing to advise the defendant during plea negotiations that his sex trafficking of a minor offense carried a statutory mandatory minimum. During plea negotiations, Osley was informed that there was no mandatory minimum sentence for his offenses, a statutory maximum of life, and that the prosecution would ask for an 80 months sentence if he pled guilty, which would result in Osley facing as little as 59.5 months with good behavior. In reality, unbeknownst to Osley, because of a recent change in the statute, Osley was subject to 15-year mandatory minimum. Osley declined the plea offer and went to trial. The jury convicted him on all counts. At sentencing, Osley was subject on an advisory Guidelines sentence of 210- 262 months. Based on the nature of the crime and Osley’s lack of remorse, the Court varied upward and imposed a 365 months sentence. Rejecting Osley’s claim that his defense counsel was ineffective for having failed to inform him of the 15-year statutory minimum, the Court pointed out that Osley turned down a plea offer with a much lesser sentence. The Court said it was hard-pressed to accept the claim that Osley would have accepted a 15-year sentence, even had he known about this statutory minimum. The Court further noted that Osley could not establish that the district court would have accepted the lesser sentence, noting that the district court would necessarily have vacated a plea agreement that recommended a sentence below a mandatory minimum. The Court also found that Osley did not establish that his sentence would have been less severe, pointing out that the district court likely would have learned of the egregious circumstances surrounding the crime in the PSI, and therefore imposed as severe a sentence as it did after trial. The Court also rejected the claim that counsel was ineffective in failing to advise Osley that he was subject to a life term of supervised release, pointing out that Osley still went to trial knowing that he faced a life sentence. Finally, the Court rejected the claim that counsel was ineffective in failing to object to “double counting” in the imposition of separate enhancements, one based on a Guideline cross-reference, another based on a Guideline specific characteristic, that accounted for the harm Osley caused. The Court found that one enhancement was for “sexual abuse of the victim,” and the other was for the “aggravated nature of that abuse.” In addition, even if double counting occurred, this would not have changed the result because the district court would have imposed the same sentence even without the alleged double counting.

Rodriguez: State must serve Appendix on habeas petitioner

In Rodriguez v. Fla. Dep’t of Corrections, No. 12-10887 (April 7, 2014), the Court held that the State is required to serve on a habeas petitioner the exhibits included in the Appendix referenced in the State’s answer. The Court rejected the argument that the Appendix was not an “attachment” or an “exhibit’ to the Answer. The Court pointed out that the Attorney General referenced the documents “because they were relevant to her argument,” and the Answer therefore depends on the Appendix’s referenced documents to support and lend meaning to the arguments it presents.

Grzybowicz: Distribution requires more than sending images to oneself

In U.S. v. Grzybowicz, No. 12-13749 (April 4, 2014), the Court affirmed two child pornography convictions and reversed a third one. The Court rejected Grzybowicz’s challenge to the sufficiency of the evidence for producing and possessing child pornography in violation of 18 U.S.C. § 2252A, noting that it would have been utterly contrary to the evidence for the jury to have found that the photos at issue were not a “lascivious exhibition of the genitals or pubic area.” The Court, however, found merit in Grzybowicz’s challenge to the sufficiency of the distribution count. The Court noted that Grzybowicz sent images from his cellphone to his computer. Thus “there is no evidence that Grzybowicz sent the images of child pornography to anyone other than himself.” The images on the computer were not stored in a shared folder accessible to other and were not uploaded to any publicly accessible website. Noting that “[w]e do not commonly speak of delivering to ourselves things that we already have,” the Court distinguished cases involving allowing access to images on a computer through a peer-to-peer program.

Travis: Vehicular Flight is a "Crime of Violence"

In U.S. v. Travis, No. 13-10400 (April 4, 2014), relying on Sykes v. U.S., held that vehicle flight in violation of Fla. Stat. § 316.1935(1) constitutes a crime of violence for purposes of the career offender sentencing guideline. The Florida statute, like the one at issue in Sykes, required nothing more than using a vehicle to flee after an officer has ordered the driver to stop. The Court held that even though § 316.1935(1) violations do not involve high speeds or other reckless conduct, they are an inherently risky enterprise because they can end in violent confrontations between the offender and police. They therefore qualify as offenses presenting “a serious potential risk of physical injury to another.”

Brown: Magistrate Judges Lack Statutory Authority to Enter Final Judgment in 2255 cases

In Brown v. U.S., Nos. 11-15149 & 12-10293 (April 7, 2014), the Court held that entry of final judgment on a motion to vacate a sentence under 28 U.S.C. § 2255 falls outside the grant of statutory authority to Magistrate Judges delegated in 28 U.S.C. § 636(c). Declining to reach the issue whether Article III of the Constitution prohibits a Magistrate Judge from entering final judgment on a § 2255 motion, the Court analyzed at length the history of the magistrate system and Supreme Court caselaw regarding Magistrate Judge authority. The Court noted that Magistrate Judges are appointed by District Courts, and would not be expected to evaluate the District Courts’ conduct at trial in a § 2255 motion. The Court also noted that it was constitutionally troublesome for Magistrate Judges to exercise a Judicial Power reserved for Article III courts. The Court therefore vacated the Magistrate Judge’s order denying Brown’s § 2255 motion and, expressing no views on the merits of Brown’s underlying claims for § 2255 relief, remanded the case to the District Court for disposition.

Feliciano: Credibility is for the jury to decide

In U.S. v. Feliciano, No. 12-15341 (April 3, 2014), the Court agreed with the government’s concession that the evidence was insufficient to support a conviction for using a firearm during a bank robbery, in view of the lack of evidence that Feliciano possessed a firearm during the robbery – but affirmed convictions on all other counts. The Court rejected Feliciano’s challenge to the credibility of the cooperating witnesses who testified against him. Though noting that there was a valid basis for these credibility challenges, the Court concluded that the issue of credibility was ultimately for the jury to decide. The Court agreed with Feliciano that the district court improperly denied him his request for expert assistance in interpreting an MRI and establishing that his back injury made it impossible for him to have been the bank robber who jumped over a teller window. But the Court found that the denial of this assistance did not have a substantial and injurious effect on the jury’s verdict, pointing out that a doctor testified at trial that Feliciano was not physically capable of jumping over the teller window. The Court rejected Feliciano’s claim that the district court erred in allowing a portion of a phone call between him and his brother to be played during the government’s rebuttal case, without the brother being on the stand, after the brother had testified at trial. Feliciano argued that the call should not have been admitted as substantive evidence, and without the brother being present. The Court noted that Rule 613(b) does not specify a particular sequence for the admission of a prior inconsistent statement. Further, the statement was actually exculpatory, so was not substantive evidence against Feliciano. The Court found no reversible error in the prosecutor’s statement in closing argument that the jury had not seen recent MRIs – knowing that the district court had denied Feliciano’s request for expert assistance in receiving a recent MRI. The Court noted, however, that “[t]his conduct does not meet the standard we expect of United States prosecutors.” [Dissenting from this portion of the decision, Judge Pryor faulted the majority for “nitpick[ing]” the prosecutor’s closing argument.

Jones: No Prejudice in failure to put on mitigating evidence

In Jones v. GDCP Warden, No. 11-14774 (March 20, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1979 murder, findingthat Jones could not satisfy the “prejudice” prong of his ineffective assistance of counsel claim. Jones claimed that his counsel was ineffective for failing to introduce at the penalty phase evidence of his childhood and mental health. The Court pointed out that had counsel gone down this route, the State could have introduced strong aggravating evidence, including Jones’ “damning record from prison and the military.” The Court found the state habeas court’s rejection of the opinions of Jones’ experts to be reasonable, given their lack of reliability.

Salgado: Money Laundering Guideline calculation should not take account of underlying offense

In U.S. v. Salgado, No. 12-15961 (March 14, 2014), the Court reversed a sentence because the district court, in calculating the offense level for a money laundering offense, “mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money.” Because Salgado was convicted of heroin trafficking and money laundering, his sentence was calculated based on the Guidelines’ grouping rules., which indicated that his sentence should be based on the money laundering guidelines. The Guidelines also provide that when a sentence is calculated based on the money laundering Guidelines, USSG § 2S1.1, other sentence adjustments are based on the Guidelines for that offense, and not for the underlying offense from which the funds were laundered. Despite this instruction, the district court increased the offense level for money laundering based on Salgado’s significant role in the drug trafficking offense. The Court rejected the government’s argument that failing to take account of the fact that a defendant played a significant role in a drug offense when sentencing for money laundering would result in defendants convicted of both crimes receiving lighter sentences than defendants convicted only of the drug offense. The Court pointed out that this was incorrect, because the grouping rules require courts to use the highest offense level of the counts in the group after factoring in sentence adjustments for each count. The Court also rejected the argument that sentencing courts are required to consider “all relevant conduct.” The Court pointed out that the Relevant Conduct Guideline begins with the words “unless otherwise specified.” The Application note with regard to money laundering “does specify otherwise.”

Terrell: Counsel for Georgia death row inmate not ineffective

In Terrell v. GDCP Warden, No. 11-13660 (March 11, 2014), the Court affirmed the denial of habeas relief to a Georgia death row inmate convicted of a 1992 murder. The Court rejected the argument that Terrell suffered prejudice as a result of his lawyer’s decision not to obtain a forensic pathologist, who would have testified that the victim was already dead when subjected to mutilation. The Court found that this evidence would have supported the prosecution’s view that the murder was done with malice and anger. The Court also found no ineffective assistance in his lawyer’s failure to challenge an armed robbery aggravating factor. Terrell’s lawyer focused on a residual doubt theory, rather than rebutting the State’s theory regarding armed robbery. The Court found that this choice did not change the outcome of the sentencing.

Louissant: Jones violation requires resentencing

In U.S. v. Louissant, No. 13-11621 (March 7, 2014) (unpublished), the Court found that after pronouncing sentence, the district court failed to elicit objections as required by U.S. v. Jones, and therefore vacated the sentence and remanded for resentencing. During its imposition of sentence, the district court announced that it was imposing a life sentence on Louissant based in part on “the evidence at trial.” Because Louissant pled guilty, this reference to “evidence at trial” must have referred to evidence presented at the trial of Louissant’s co-conspirator. Louissant had no opportunity to rebut that evidence – some of this evidence was never discussed at sentencing nor contained in the PSI. This evidence was therefore considered by the district court in violation of U.S. v. Castellanos. The Court rejected the government’s argument that the defendant in effect had an opportunity to object, as evidenced by defense counsel asking “Your Honor, may I preserve [Louissant’s] objection for the record.” This objection merely ensured that previously raised objections were preserved, while Jones is designed to afford the defense an opportunity to raise new objections that have arisen since the defense last had an opportunity to object.

Pacquette: Rule of Completeness Requires Reversal

In U.S. v. Pacquette, 13-11736 (Mar. 4, 2014) (unpublished), the Court held that the district court erred in excluding a defendant’s exculpatory statement, because the statement was admissible under the “rule of completeness.” At trial, on cross-examination of government Customs agents, defense counsel sought to elicit the fact that Pacquette, after initially saying that everything in his bag was his, disclaimed ownership of the drugs the agents found in his bag. The district court precluded this questioning, ruling that it was hearsay and an exculpatory statement, admissible only if the defendant testified. After defense counsel in closing statement told the jury that Pacquette had denied that the cocaine was his, the district court instructed the jury to disregard this argument, because there was no evidence to support it. Reversing, the Court held that under Fed. R. Evid. 106 and 611(a), and Circuit precedent, the rule of completeness applied to oral statements. Here, the officers’ testimony was “incomplete,” because it did not include Pacquette’s disclaimer of ownership of the drugs. The error was not harmless, because the prosecutor argued in closing argument that the jury should consider Pacquette’s failure to say “I got duped.” “The district court magnified the error by instructing the jury that ‘there is no evidence . . . [Pacquette] denied . . . knowing the contents of the bag.”

Jones: Howard error is "plain error"

In U.S. v. Jones, No. 11-11273 (Feb. 25, 2014), the Court held that it was “plain error,” in light of its recent decision in Howard, for the district court to rely, for ACCA sentence enhancement purposes, on a prior conviction for Alabama third-degree burglary. Unlike the defendant in Howard, Jones did not object in the district court to his sentence enhancement based on a prior conviction for Alabama third-degree burglary. The issue was therefore reviewed for “plain error.” The Court found that in light of Howard, there was “error,” and this error was “plain.” The error also affected Jones’ substantial rights, because at resentencing the district court “will be statutorily compelled to give Jones a shorter sentence.” Finally, this seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”

Ramirez-Flores: Pre-Descamps burglary is divisible

In U.S. v. Ramirez-Flores, No. 12-15602 (Feb. 21, 2014), the Court affirmed the imposition of a sentence enhancement for a prior South Carolina burglary of a dwelling qualified as a “crime of violence” under U.S.S.G. § 2L1.1(b)(1)(A)(ii). Because Ramirez-Flores raised the issue for the first time on appeal after briefing, the Court reviewed only for “plain error” his argument that the South Carolina burglary of a dwelling statute is “indivisible.” The Court found that it was not “plain” whether the statute was “indivisible” – it could be read to be “divisible.” Therefore it was not plain error to treat the statute as “divisible.” Turning to Ramirez-Flores’ argument that even under a pre-Descamps, Shepard-based challenge, his prior burglary conviction was not a “crime of violence,” the Court faulted the defendant for failing to raise sufficiently specific objections to the PSI’s description of the burglary to alert the government that it should obtain further documentation about the state court proceeding, i.e. to determine whether Ramirez-Flores burglarized a residence or a secondary structure.

Joseph: No Restitution Offset for Forfeiture Amount

In U.S. v. Joseph, No. 13-12369 (Feb. 21, 2014), the Court held that a defendant is not entitled to offset the amount of restitution owed to a victim by the value of property forfeited to the government. The Court explained that restitution and forfeiture serve distinct purposes. Consequently, a district court has not authority to offset the restitution amount by a forfeiture amount. The Court pointed out that the recipient of the forfeiture – the Department of Justice – and the victim entitled to forfeiture – the IRS – were different entities. The Court noted that the district court had directed an offset in its oral pronouncement of sentence. But Joseph could not avail himself of the rule that an oral pronouncement of sentence trumps a subsequent written judgment (in which the court declined to offset the forfeiture amount), because the district court was without authority to order the offset.

Howard: Alabama Third-Degree Burglary not an ACCA predicate

In U.S. v, Howard, No. 12-15756 (Feb. 19, 2014), the Court, applying the Supreme Court’s decision in Descamps v. U.S., reversed U.S. v. Rainier, and held that because Alabama third-degree burglary is a non-generic, indivisible offense, it does not qualify as a predicate offense under ACCA. The Court explained that the Alabama statute makes it a crime to burglarize a “building,” and then gives a non-exhaustive list of illustrative examples of buildings, some of which, like “watercraft,” fall outside the “building or structure” element of generic burglary. “Illustrative examples are not alternative elements.” As a result, the statute is non-generic and indivisible, which means it does not qualify as a generic burglary under ACCA.

Campbell: Confrontation Clause does not apply to vessel without nationality

In U.S. v. Campbell, No. 12-13647 (Feb. 20, 2014), the Court held that the Confrontation Clause does not apply to the “vessel without nationality” fact that establishes jurisdiction under the Maritime Drug Law Enforcement Act. The Court explained that because Congress had removed this jurisdictional element from consideration by the jury – an element that bore only on diplomatic relations between the United States and foreign governments – the Confrontation Clause did not apply. The Court also rejected the claim that Campbell was entitled to a jury trial on this “preliminary” element. The Court found that Congress has authority under the Felonies clause of the Constitution to assert extraterritorial jurisdiction over narcotics trafficking, rejecting the argument that this clause only applies to capital crimes.

Smith: Flight in vehicle or on foot is "violent felony"

In U.S. v. Smith, No. 12-14842 (Feb. 11, 2014), after a remand from the Supreme Court to reconsider the case in light of U.S. v. Descamps, the Court held that the crime of fleeing a police officer, in violation of Fla. Stat. § 316.1935(2), is categorically a violent felony under the Armed Career Criminal Act. The Court first found that because § 316.1935(2) prohibits only vehicular flight, as distinct from fleeing on foot, the offense posed the inherent risk that made it a violent felony under ACCA. Alternatively, the Court held that fleeing and eluding a law enforcement officer, whether in a vehicle or on foot, is a violent felony under ACCA. The offender, whether on foot or in a vehicle, creates risks comparable to those created by the offenses listed in the ACCA residual clause.

Isnadin: Predisposition to commit a few crimes

In U.S. v. Isnadin, No. 12-13474 (Feb. 14, 2014), the Court affirmed the convictions and sentences of defendants convicted of attempt to possess 500 grams or more of cocaine and of possession of a firearm in connection with a crime of violence or a drug trafficking crime. The defendants were charged with attempted Hobbs Act robbery, attempted cocaine possession, and possession of firearms, all arising out of a sting operation involving the robbery of a fictitious drug stash house. During deliberations, the jury asked whether, if it found that the defendants were entrapped as to the robbery of the stash house, this should affect its verdict as to the other counts. Over defense objection, the trial court instructed the jury to consider entrapment separately as to each count. The jury ultimately convicted on the drug and gun counts, and acquitted on the Hobbs Act robbery counts. On appeal, the defendants argued that because the drug stash robbery, the attempted cocaine possession, and the firearms counts involved a single intertwined “course of conduct,” it was reversible error to instruct the jury to consider the defendants’ entrapment defense separately as to each count. Rejecting this argument, the Court explained that even if the defendants were induced as to all counts, “it may well be that the facts of a given case indicate that an individual defendant is predisposed to commit some crimes, but not others.” Here, it was possible that the defendants “were predisposed to conspire to possess the cocaine in some manner . . . even if they were not predisposed to rob [the stash house].” The Court noted that, during discussions with the undercover agent, the defendants raised the question whether they could obtain the cocaine without robbing the stash house, thus making it “permissible for the jury to conclude that [they] conspired to secure the drugs in their possession by some means, even if not by armed robbery.” Similarly, the jury could have concluded that the defendants were predisposed to possess firearms in furtherance of a conspiracy to possess a large quantity of cocaine, even the defendants were not predisposed to possess firearms to rob the stash house.

Reeves Sufficient Evidence to convict wife of cocaine trafficker

In U.S. v. Reeves, No. 12-13110 (Feb. 6, 2013), the Court affirmed cocaine trafficking convictions of three defendants. The Court rejected a sufficiency of the evidence challenge of the wife of one cocaine trafficker. The Court found that her phone conversation with her husband in which she was attempting to warn him about police activity on a highway, and her husband’s telling her, after he was arrested, to go back to their home and get “that shit out of there,” combined with a cooperating witness’ testimony that she was present when her husband told someone that four kilograms of cocaine had been robbed from their home, and the jury’s discretion to discredit her testimony when she took the stand, sufficed to support her conspiracy conviction. The Court also rejected the argument that a statement by the husband was not admissible under the co-conspirator exception to the hearsay rule, because it was made after he was arrested. The Court noted that the arrest of a co-conspirator does not necessarily end the conspiracy.

Cadet: No equitable tolling with mere gross negligence of attorney

In Cadet v. Florida Dep’t of Corrections, No. 12-14518 (Jan. 31, 2014), the Court found that equitable tolling did not apply to a federal habeas petition filed after expiration of the AEDPA one-year deadline, when the petitioner repeatedly questioned his lawyer’s incorrect advice that the deadline was not about to expire. The Court recognized that in Holland v. Florida, the Supreme Court implied that counsel’s more than “garden variety” neglect would toll the AEDPA deadline. The Court found, however, that more recently in Maples v. Thomas, the Supreme Court had “recast” Holland, to hold that tolling only applies when a lawyer “abandons” his client, and that mere “gross negligence” does not suffice. Applying the abandonment standard, the Court found that Cadet’s lawyer had not abandoned him, because he was not “acting adversely” to Cadet. The lawyer “did not withdraw from representing Cadet, renounce his role as counsel, utterly shirk all of his professional responsibilities, or walk away from their attorney-client relationship.” The lawyer merely stubbornly but in good faith adhered to [his erroneous reading of the law].”

Ransfer: Applying good faith reliance on precedent exception

In U.S. v. Ransfer, No. 12-12956 (Jan. 28, 2014), the Court held that the good faith reliance on precedent exception to the exclusionary rule applied to the police’s warrantless use of a GPS device to track the movement of a vehicle after a robbery. The Court noted that its precedent, at the time, allowed the installation of a tracking device (a beeper) on the outside of a vehicle without a warrant. [In December 2013, the Court reached the same result in U.S. v. Smith]. The Court found no hearsay violation in the admission of testimony by a police officer regarding information that the police had obtained about the modus operandi of a series of robberies by the defendants. The Court noted that the police officer had supervised a month-long endeavor to identify and locate multiple perpetrators who engaged in a series of robberies. The testimony explained why the police believed the same perpetrators committed the crimes. The Court noted that even if the admission of the testimony was in error, the same points covered by the testimony had been covered by other evidence in the record, such as BOLO reports, and surveillance video; consequently, any error was not reversible error. As to one co-defendant (Lowe), the Court found sufficient evidence to support his robbery convictions, based on evidence that he was present at the stores during the robberies and exchanging text messages and cell phone calls with the robbers, and made inconsistent statements to police about his presence during the robberies. As to one robbery, however, the Court found insufficient evidence, because there was no evidence that Lowe was ever inside the store during the robbery. The Court rejected the argument that a Miranda waiver and statements to police were not voluntary because the defendants were held for more than 24 hours and subject to coercion. The Court noted that the detention was not that lengthy and found no coercion. The Court also rejected Lowe’s argument that the district court unduly limited his counsel’s closing argument to 20 minutes, pointing out that Lowe did not point to any argument his attorney was unable to cover in the allotted 20 minutes.

Harris: Mandatory Life Sentence Not Invalid under Alleyne

In U.S. v. Harris, No. 12-14482 (Jan. 28, 2014), the Court affirmed the mandatory life sentence of a defendant convicted of multiple Hobbs Act robberies and violations of 18 U.S.C. § 924(c), and sentenced pursuant to 18 U.S.C. § 3559(c). The Court rejected the argument that the mandatory life sentence was invalid in light of the Supreme Court’s recent decision in Alleyne. The Court pointed out that the mandatory life sentence was based on Harris’ prior convictions, and noted that Alleyne did not overrule Almendarez-Torres, which held that the Sixth Amendment did not require the fact of a prior conviction to be submitted to a jury. The Court also rejected a Separation of Powers challenge to the government’s authority to charge a defendant under § 3559(c) and 21 U.S.C. § 851 in a manner that triggers a mandatory minimum punishment of life.

Mathauda: Defendant who never heard about prior order not willfully blind to it

In U.S. v. Mathauda, No. 11-13558 (Jan. 21, 2014), the Court reversed the imposition of a two-level enhancement under U.S.S.G. § 2B1.1(b)(9)(C) for a violation of a prior court. After being convicted of multiple counts of fraud, Mathauda’s sentence was enhanced based on his violation of a violation of a court order in a civil case brought by the FTC, in which his attorney had allowed a default judgment to be entered. The Court rejected the government’s contention that Mathauda was “willfully blind” to the prior court order. The Court pointed out that no final order was served on Mathauda, and he never heard anything about it until his sentence was enhanced in the federal fraud case.

Yeary: Consent to search in pretrial detention order is voluntary

In U.S. v. Yeary, No. 11-13427 (Jan. 22, 2014), the Court affirmed multiple drug-trafficking and gun possession convictions, a sentence of 1,092 months, and rejected the argument that a warrantless search of a home was non-consensual and therefore in violation of Fourth Amendment. After an arrest on felony charges, a Florida state judge ordered that Yeary be detained under in-house arrest. The conditions of his in-house arrest provided that Yeary agreed to warrantless searches of his house, at any time of day or night, without prior notice. Acting on an anonymous tip, police went to Yeary’s house while he was under in-house arrest, and conducted a warrantless search that yielded dugs, a firearm, and ammunition. The Court concluded that Yeary had consented to the search of his residence in his house-arrest agreement, and that this consent was voluntary. The Court noted that, in light of Yeary’s criminal history, his risk of flight, and his threat to kill his ex-girlfriend, it was “entirely reasonable” to condition Yeary’s house arrest on his consent to warrantless searches of his residence. [Martin, J., concurring, noted that the Supreme Court has not yet applied the consent doctrine to uphold the search conditioned on an agreement made by a probationer or parolee as a condition to his release from jail. Consequently, Judge Martin would have applied a “totality of the circumstances” test to decide whether the search was valid]

Aguilar-Ibarra: Untimely objection to PSR

In U.S. v. Aguilar-Ibarra, No. 13-10307 (Jan. 22, 2014), the Court affirmed a district court’s determination that a defendant’s objection to the Probation Office’s Presentence Investigation Report was untimely, because it was not filed within the 14-day deadline of Fed. R. Crim. P. 32(f)(1). The Court rejected the argument that the deadline was inapplicable because the parties had agreed to that an enhancement (for bodily injury) should not apply, pointing out that the deadline exists to ensure that the district court can meaningfully exercise its sentencing authority. Reviewing the issue for “plain error” as a result of the waiver, the Court rejected the argument that an enhancement for “bodily injury” under U.S.S.G. § 2B3.1 should not have applied, because of a lack of evidence. The Court noted that the district court was authorized to rely on unobjected-to factual statements in the PSR. Here, the PSR stated that the victim sustained injuries.

Bryant: Savings Clause allows post Begay challenge to sentence

In Bryant v. Warden, No. 12-11212 (Dec. 24, 2013) (2-1, Martin, J. partially dissenting), the Court held that a federal inmate serving a 235-month sentence for a conviction under 18 U.S.C. § 922(g), and who had previously filed a § 2255 motion to vacate his sentence, was entitled to challenge his sentence under 28 U.S.C. § 2241, based on the “savings clause” of § 2255(e). The Court noted that Bryant had not defaulted his claim, even though he failed to raise it on direct appeal or in his § 2255 motion, because the government had waived the procedural default argument. In addition, the “savings clause” of § 2255(e) applies regardless of whether a federal prisoner has failed to apply for § 2255 relief. The Court cited dicta in its precedent where it recognized that a claim might qualify under the § 2255(e) “savings clause” if the error at issue resulted in a higher statutory maximum sentence. The Court emphasized that prior to Begay and its Eleventh Circuit progeny, Eleventh Circuit precedent foreclosed any potential claim that a prior concealed-firearm conviction under Fla. Stat. § 790.01 was a “violent felony” under § 924(e). Begay had a “Circuit-busting effect.” It meant that offenders in Bryant’s position could now successfully challenge reliance on prior § 790.01 convictions for sentence enhancement purposes under § 924(e). This result was unaffected by post-Begay Supreme Court caselaw (Sykes), because the concealed-firearm offense was a strict liability offense. Begay applies retroactively, because it affects the maximum punishment that the law can impose. The Court held that a claim that a sentence exceeds the statutory maximum may be brought, in these circumstances, under the “savings clause.” Savings clause claims are not limited to “actual innocence” claims. The Court rejected the government’s argument that even if Bryant’s prior concealed firearm conviction did not qualify as a prior conviction under § 924(e), the government could obtain the same sentence at resentencing by relying on a prior burglary conviction upon which it had not relied at the original sentencing. The Court therefore instructed the district court to grant Bryant a sentence reduction from 235-months to 120-months. [Partially dissenting, Judge Martin read the savings clause more broadly].

Contreras: 2nd degree sexual battery is "crime of violence"

In U.S. v. Contreras, No. 13-10928 (Jan. 2, 2014), the Court, on a government appeal, held that second-degree sexual battery in violation of Fla. Stat. § 794.011(5) is a “crime of violence” and therefore subjects a defendant convicted of illegal re-entry to a 16-level Guideline enhancement under U.S.S.G. § 2L1.2(b)(1)(A). Contreras argued that because § 749.011(5) does not require any force other than that necessary to achieve “penetration” or “union,” it is not a “forcible” sex offense. The Court noted that under the Guidelines definition of “forcible sexual offenses,” the use of physical force is not an element. It includes situations where there is no legally valid consent. The Court therefore vacated Contreras’ sentence and remanded for resentencing.

Smith: Warrantless GPS surveillance in good faith pre-Jones

In U.S. v. Smith, No. 12-11042 (Dec. 23, 2013), the Court rejected the argument that evidence should have been suppressed because it was obtained by warrantless GPS surveillance, finding that, at the time the officers installed GPS trackers on Smith’s vehicle they acted in reasonable reliance upon this Court’s then-binding precedent. After the GPS surveillance at issue in Smith’s case, the United States Supreme Court decided U.S. v. Jones, 132 S.Ct. 945 (2012), which held that placing a GPS tracking device on a suspect’s car constituted a “search” for purposes of the Fourth Amendment. Invoking Jones, Smith asked the Court to hold that the search in his case was unreasonable – an issue the Supreme Court had not reached in Jones. The Court noted that in Davis v. U.S., 131 S.Ct. 2419 (2011), the Supreme Court had held that the good faith exception to the exclusionary rule applies to searches conducted in objectively reasonable reliance on binding appellate precedent that is subsequently overruled. The Court noted that in U.S. v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), the Court’s predecessor Court had held that the warrantless use of a beeper to track a suspect’s movements on public roads involved neither a search nor a seizure under the Fourth Amendment. The Court rejected Smith’s attempt to distinguish between a beeper and a GPS tracking device, citing other cases that had rejected this same argument, and stating: “Michael [in 1981] established the constitutionality of warrantless GPS surveillance.” The police officers were not mistaken in relying on Michael “as binding precedent.” The Court acknowledged conflict with U.S. v. Katzin, 732 F.3d 187 (3rd Cir. 2013). Turning to sentencing, the Court rejected the challenge to the district court’s reliance on acquitted conduct in enhancing Smith’s sentence, noting that even after Booker sentencing courts may consider such conduct in determining the appropriate sentence.

Downs: No habeas relief for 1977 murder

In Downs v. Sec., Fla. Dep’t of Corrections, No. 12-14248 (Dec. 5, 2013), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1977 murder. The Court rejected a Brady claim, finding that the state habeas courts reasonably credited a detective testimony that he only learned after Downs’ trial of a statement by an accomplice, Johnson, that he, Johnson, not Downs, was the killer. The Court also rejected a Brady violation based on the State’s failure to disclose the identity of a jailhouse informant, pointing out that Downs knew the information that this informant also knew, and that this informant did not witness the murder. The Court also rejected an ineffective assistance of counsel claim, finding that defense counsel’s advice that Downs not take the stand in his defense not to be constitutionally incompetent. Finally, the Court found that a contingency fee arrangement in which defense counsel agreed to receive $10,000, if Downs was acquitted of all felony charges, did not create a conflict of interest that affected the adequacy of representation. Downs claimed that the contingency fee arrangement gave defense counsel an incentive not to call any witnesses at trial, thus defeating possible conspiracy charges. The Court found no prejudice in the arrangement, crediting defense counsel’s statement that it would have taken “a miracle” to get Mr. Downs acquitted of all felony charges.

Martinez: Rejecting 1st Amendment Challenges to 875(c)

In U.S. v. Martinez, No. 11-13295 (Nov. 27, 2013), the Court affirmed a conviction for knowingly transmitting a threatening communication, in violation of 18 U.S.C. § 875(c), rejecting First Amendment challenges to this statute. The Court noted that, under Supreme Court caselaw, the First Amendment does not protect “true threats.” The Court rejected the argument that a defendant’s “subjective intent” is an essential element to establishing the existence of a “true threat.” The Court held that a true threat is a statement that contains a serious expression of violent intent, and the speaker need not subjectively intend her statement to be a threat. The Court noted the “fear of violence” that true threats engender, regardless of subjective intent. The Court also rejected an overbreadth challenge to § 875(c). Because the statute is limited to “true threats,” it criminalizes no protected expressive activity. The Court distinguished true threats from cross burning, which is expressive activity that can receive First Amendment protection in certain circumstances.

Gissendaner: Counsel not ineffective

In Gissendaner v. Seaboldt, No. 12-13569 (Nov. 19, 2013), the Court denied habeas relief to a Georgia inmate sentenced to death for conspiring with her lover in 1998 to murder her husband. The Court rejected the argument that counsel was ineffective during plea negotiations, pointing out that Gissendaner herself turned down the State’s offer of a minimum 25-year sentence. The Court also rejected a Brady claim, agreeing with the state habeas court that the undisclosed notes of a witness’s statements would not have changed the outcome. Finally, the Court rejected the argument that counsel was ineffective for failing to investigate Gissendane’s alleged history of sexual abuse, noting counsel’s thorough investigation, and the unsubstantiated nature of the abuse claim. The Court also discounted the recent findings of mental health professionals, noting that Gissendaner had no history of psychiatric treatment, and the fact that they were “unpersuasive.”

Sterling: Defendant waived right to be present at trial

In U.S. v. Sterling, No. 12-12255 (Nov. 21, 2013), the Court affirmed convictions for bank robbery, use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon. The Court rejected the argument that the trial court violated the defendant’s right to be present at trial. The Court noted that trial had commenced on the day of jury selection when the court informed Sterling of his rights in an interview room, and trial proceedings were explained, and Sterling waived his right to be present at trial. The Court noted that Sterling repeatedly interrupted the judge during pretrial proceedings, and provided nonresponsive answers to the court’s questions. Consequently, the court properly concluded that the public interest was served by continuing the trial without Sterling. The Court also rejected a challenge to the admission under Fed. R. Evid. 404(b) of the defendants’ prior bank robbery conviction. Although the prior conviction occurred 15 years before the bank robbery at issue, both defendants were incarcerated until approximately seven years before the robbery at issue. The prior robbery was strong circumstantial evidence that one robber would know that another robber would use a gun in the robbery.

Garza-Mendez: Not bound by state court "clarification"

In U.S. v. Garza-Mendez, No. 12-13643 (Nov. 15, 2013), the Court (2-1) affirmed the imposition of an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C), finding that Garza-Mendez’ prior Georgia conviction for family-violence battery qualified as an “aggravated felony.” The Gwinnett County, Georgia 2007 judgment for Garza-Mendez’ family-violence battery stated that the was sentenced to 12 months of “confinement in the Gwinnett County Comprehensive Correctional Complex.” In 2012, Garza-Mendez obtained a “clarification” from another Gwinnett County judge stating that this was for 12 months of probation, not twelve months of incarceration. Under § 2L1.12(b)(1), a prior conviction counts as an aggravated felony if the defendant was sentenced to 12 months or more of incarceration. The Court held that it was not bound by the “clarification,” but by the original judgment which “could not be any clearer” that Garza-Mendez was sentenced to 12 months of “confinement.” The Court found no abuse of discretion in the district court’s declining to accord a downward departure or variance based on cultural assimilation, citing the district court’s finding that Garza-Mendez had a history of serious offenses, and that cultural assimilation refers to aliens who have “lived lawfully,” not to those who “haven’t been be able to do that.” Finally, the Court affirmed the district court’s requirement that Garza-Mendez report from Mexico to his probation officer during his three-year term of supervised release, after deportation. The Court cited the district court’s finding that extraterritorial reporting was appropriate in light of Garza-Mendez prior illegal re-entry.

Childers: Evidentiary rule subsumed Confrontation Clause

In Childers v. Floyd, No. 08-15590 (Nov. 14, 2013) (en banc) (per curiam), the Court, on remand from the Supreme Court for further consideration in light of Johnson v. Williams, held that, even though a prior Florida state court appellate decision had not expressly addressed Childers’s claim that limitations on cross-examination of a state witness violated his Confrontation Clause rights, Childers had not rebutted the presumption that the state appellate court adjudicated Childers’s Confrontation Clause claim on the merits. The Court noted that although the state appellate court decision “analyzed Childers’s claim under only the Florida rules of evidence, the underpinnings of these rules fit hand in glove with the rights guaranteed under the Confrontation Clause.” The underpinnings were the same because the Florida rule of evidence “gave Childers the same right of confrontation he enjoyed under the Confrontation Clause – the right to expose a witness’s motivation in testifying.” In limiting cross-examination, the trial judge balanced this right against the “danger of unfair prejudice” – a limitation which the Confrontation Clause also recognizes. [Dissenting, Judge Wilson stated that Florida’s evidentiary rule is less protective of the right of cross-examination than the Confrontation Clause].

Siler: Forcible Assault + Dangerous Weapon = 20 years

In U.S. v. Siler, No. 12-14211 (Nov. 13, 2013), the Court affirmed a conviction for assaulting a corrections officer with a deadly or dangerous weapon, in violation of 18 U.S.C. § 111(b), and a 20-year sentence for this offense. The statute at issue, § 111(a) and (b), establishes three levels of punishment: a maximum of one year for an offense involving only simply assault, a maximum of 8 years when the acts involve physical contact with the victim, and a maximum of twenty years when the offender uses a deadly or dangerous weapon or inflicts bodily injury. Siler placed a homemade rope around a corrections officer’s neck and forcibly choked him. He argued that he only qualified for a maximum of one year under the statute. Rejecting this argument, the Court interpreted § 111 to subject a person to the 20-year maximum when a person commits the acts set forth in subsection (a) of the statute, e.g., a forcible assault, and used a deadly or dangerous weapon during that assault. Because the jury so found, the Court affirmed the conviction and the 20-year sentence.

Robertson: Affirming murder convictions of white supremacist

In U.S. v. Robertson, No. 12-10046 (Nov. 12, 2013), the Court affirmed convictions for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Robertson was convicted of murdering homeless persons in order to improve his standing in the Tampa, Florida, Blood and Honour white supremacist group The Court affirmed the district court’s factual finding that there was no immunity deal that would have foreclosed the government from prosecuting Robertson for the murders charged in the indictment. The Court also affirmed the district court’s ruling that sustained three government Batson challenges to Robertson’s motions to peremptorily strike three black venire members. The Court did not agree that it could affirm the district court’s ruling as to Robertson striking of the first black venire member based on his subsequent attempt to strike two more blacks venire members. But the Court found that the district court properly relied on the fact that Robertson was a white defendant striking black venire persons in a trial involving a violent crime against a black victim, and that there were only three black venire members. The Court also noted that Robertson’s justification that the black venire person had ties to law enforcement was contradicted by his decision not to strike several other jurors who had law enforcement connections. Finally, the Court rejected the challenge to the sufficiency of the evidence of a racketeering motive, pointing out that Robertson and others “got tattoos commemorating their participation in the killings.”

Owens: Burden shifting instruction harmless

In Owens v. McLauglin, No. 12-12590 (Oct. 24, 2013), the Court affirmed the denial of habeas relief to a Georgia inmate convicted of a 1981 murder. The Court agreed with the petitioner that the Georgia trial court impermissibly shifted the burden of proof on the issue venue – under Georgia law, an essential element of the offense – when the jury was instructed that it “shall” consider the murder to have occurred in the place where the body was found. But the Court found the burden-shifting error harmless, in light of the overwhelming evidence regarding the place where the murder actually occurred. The Court also rejected the argument that Owens’ due process rights were violated because the state waited 25 years before ruling on his motion for a new trial. “The Supreme Court has never held that there is a constitutional right to a speedy direct appeal in a state criminal case.”

Elliot: Alabama Juvenile Adjudication counts as prior conviction

In U.S. v. Elliot, No. 12-10553 (Oct. 18, 2013), the Court rejected a challenge to an eyewitness identification and affirmed the conviction of a defendant for robbery and brandishing a firearm during and in relation to a crime of violence. The Court also rejected the argument that the district court erred by considering a prior Alabama youthful offender adjudication as a prior felony conviction for purposes of qualifying the defendant under the Guidelines as a “career offender.” The defendant claimed that a photo lineup from which an eyewitness identified him was unduly suggestive because the identification was tainted by her observation of photos of him on the internet and printed flyers. Rejecting this argument, the Court pointed out that the Constitution only prohibits identifications tainted by suggestive circumstances only when law enforcement activity is involved. Here, the witness’s observation of a surveillance videotape of the robbery prior to the lineup was not the result of police misconduct, and police officers were not involved in her independent viewing of photos on the internet. Turning to Elliot’s prior Alabama youthful offender adjudication, the Court recognized that it would not count as a conviction under Alabama law. However, federal law, not state law, determined whether a prior adjudication counted as a conviction for Guideline “career offender” purposes. The Court noted that, under its precedent, a plea of nolo contendere with adjudication withheld is a conviction for career offender purposes, and reasoned that a youthful offender adjudication “must also be considered” a conviction.

Puiatti: Counsel not ineffective for missing red flags of child abuse

In Puiatti v. Sec., Fla. Dep’t of Corrections, No. 12-15581 (Oct. 15, 2013), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1983 murder. The Court rejected the argument that defense counsel was ineffective at the penalty phase of the trial for ignoring “red flags” of child abuse. The Court noted that Puiatti’s attorney did not receive any document that suggested that Puiatti was abused as a child. Moreover, counsel asked questions about Puiatti’s background and childhood but received misleading answers. In addition, counsel could not be faulted for failing to link Puiatti’s history of drug abuse with an otherwise-undisclosed history of child abuse. Further, the Court found that even if counsel had been ineffective, this did not affect Puiatti’s substantial rights. “Although Puiatti’s childhood was far from ideal, the record does not establish that the jury or the state trial court here would have necessarily found it a mitigating factor or a strong one at that.” In addition, had Puiatti been portrayed as a sympathetic victim of his parents’ abuse, this would have invited the State to put on a rebuttal case showing that the murder was consistent with a pattern of antisocial behavior.

Castro: Equally Plausible that district court comment did not affect plea

In U.S. v. Castro, No. 12-12927 (Sept. 26, 2013), the Court affirmed Castro’s convictions, in light of the recent holding in U.S. v. Davila, 133 S.Ct. 2139 (2013) that judicial participation in plea discussions does not result in automatic vacatur of the plea, but instead requires consideration of whether, but for the district court’s comment, the defendant would have gone to trial. During the plea colloquy, in response to the defendant’s statement that no longer wanted to plead guilty, the district court advised the defendant of adverse consequences of renouncing his plea agreement. The Court held that Castro failed to explain how the comment affected his decision. The Court noted when Castro decided to change his plea to guilty, he signed another copy of his plea agreement and stated that he had not been pressured to plead guilty. Although it was plausible that Castro decided to plea guilty because of the comment of the district court, it was “equally plausible” that he pled guilty to shorten the duration of his inevitable sentence.

Muhammad: Confrontation Clause does not apply at capital sentencings

In Muhammad v. Fla. Sec. Dep’t of Corrections, No 12-16243 (Sept. 23, 2013) (2-1) (Wilson, J., dissenting), the Court reversed the grant of habeas relief to a Florida inmate sentenced to death for a 1974 murder. The Court held that Muhammad’s Confrontation Clause rights were not violated during the penalty phase of his case, a resentencing hearing at which a witness testified about the testimony presented at the earlier guilt phase of the trial. After canvassing Supreme Court and Eleventh Circuit caselaw, the Court found that the Confrontation Clause does not bar the admission of hearsay testimony at capital sentencing hearings. The Court also rejected the argument that the application of a “cold, calculated, and premeditated” statutory aggravating factor to his case violated the Ex Post Facto Clause, because that factor was not enacted until after he committed his murders. The Florida Supreme Court concluded that this aggravator added nothing new to the elements of the crimes but rather adds limitations which inure to the benefit of the defendant. The Court found that this application of the Ex Post Facto Clause was not unreasonable under clearly established law.

Howell: Change in interpretation of limitations not extraordinary

In Howell v. Sec., Fla. Dep’t of Corrections, No. 13-10766 (Sept. 13, 2013) the Court affirmed the denial of habeas relief to Florida inmate sentenced to death for a 1992 murder, finding the petition to be time-barred. Howell claimed that a Supreme Court decision that altered the interpretation of the statute of limitations for a petition for a writ of habeas corpus was an “extraordinary circumstance” that warranted relief from the denial of a habeas petition under Federal Rule of Civil Procedure 60(b). Rejecting this argument, the Court held that under Gonzalez v. Crosby, this did not qualify as an “extraordinary circumstance.”

Diveroli: District Court lacks jurisdiction over motion to dismiss indictment once notice of appeal is filed

In U.S. v. Diveroli, No. 13-10248 (Sept. 10, 2013), the Court held that, although Federal Rule of Criminal Procedure 12(b)(3)(B) provides that a defendant may "at any time while the case is pending" file a motion claiming that the indictment fails to invoke the court's jurisdiction or to state an offense, once a notice of appeal has been filed the district court does not have jurisdiction to entertain such a motion. The Court invoked the general rule against "dual jurisdiction," and noted that allowing a district court to rule on whether an indictment stated an offense while an appeal was pending "would wreak havoc": a successful appeal would render the motion moot, and a successful motion in the district court would moot the appeal -- it might even moot the decision of the appellate court, a result the Court held it was not required to "countenance."

Edwards: Restitution affirmed in part, reversed in part

In U.S. v. Edwards, No. 11-15953 (Sept. 6, 2013), the Court affirmed in part and reversed in part the restitution ordered to be paid by a defendant convicted of fraudulently soliciting funds from investors by promising astronomical returns and the using the funds for extravagant personal expenses. The Court rejected the argument that the district court erred by failing to take account of Edwards’ financial resources, pointing out that under the Mandatory Victims Recovery Act (MVRA) the district court is require to grant the full amount of restitution. The Court rejected the argument that he should not have been required to pay restitution for a separate real estate investment transaction unrelated to the scheme charged in the indictment. The Court noted that when the crime of conviction involves a “scheme, conspiracy, or pattern of criminal activity as an element of the offense, the court may order restitution for acts of related conduct for which the defendant was not convicted.” Here, the district court could conclude that the real estate transaction was a “related scheme,” because “the schemes involved the same modus operandi and participants. The Court also rejected the argument that restitution should not have been ordered restitution to victims in counts that were dismissed at trial. The Court noted, again, that the lack of a conviction does not preclude restitution. Because the record showed that victims of two dismissed counts were harmed by Edwards, the Court affirmed the restitution as to these two. Finally, the Court agreed that there was insufficient evidence to support restitution for four victims. These alleged victims were not mentioned in the Presentence Report, and the government never mentioned them to Edwards. As a result of these procedural mistakes, Edwards first learned of the victims when the district court entered a restitution order. Because the government admitted on appeal that there was no evidence to support restitution for these victims, the Court found that the district court clearly erred in awarding restitution to these victims. Using its broad discretion on appeal to fashion an appropriate remedy, and noting that if it did not remand the individuals would be denied the possibility of restitution through no fault of their own, the Court remanded the case for the district court to hold a hearing on whether these individuals are entitled to restitution.

Bush: Applying Independent Source Doctrine

In U.S. v. Bush, No. 12-12624 (Aug. 27, 2013), the Court affirmed cocaine trafficking convictions, rejecting challenges to the denial of a motion to suppress, and to the giving of an Allen charge. Bush claimed that the search warrant to search his residence was obtained in violation of the Fourth Amendment, because the decision to obtain a warrant was based on evidence obtained as a result of an unlawful dog sniff at the residence, and from information gleaned from a GPS device placed on his vehicle. The Court noted that under the “independent source doctrine,” a warrant can still be valid if supported by sufficient other information, and if the officer would have sought the warrant even without the preceding illegal search. Here, both conditions were satisfied. The police obtained information from a variety of valid sources, including surveillance of the home, and a “trash pull.” Further, the police decision to seek a warrant was not based on the illegally obtained information. Turning to the Allen charge, the Court recognized that this charge was given even though the jury had not stated it was “deadlocked,”at 6:21pm, after four hours of deliberation, and the jury returned a guilty verdict on all counts 47 minutes later. The Court noted that “in hindsight, it might have been better for the district court to let the jury go home and return the next day.” But the Court found that it had previously upheld Allen charges given in “more extreme” circumstances, and therefore could not find that the jury here was “coerced.”

In U.S. v. McQueen, No. 12-10840 (Aug. 22, 2013), the Court affirmed convictions, under 18 U.S.C. § 241, of Florida corrections officers for depriving several inmates of their right to be free of cruel and unusual punishment, and obstruction of a government investigation, in violation of 18 U.S.C. § 1519. On a government cross-appeal, the Court vacated the sentences as substantively unreasonable. Using a broomstick, the defendants struck inmates, inflicting serious, lasting injuries. The Court rejected the argument that there was insufficient evidence that the defendants, State employees, intended to impede a federal investigation when they falsified a document regarding the cause of inmate injuries that caused them to be taken to the medical station. The Court noted that the federal nature of the investigation, under the statute, is merely a jurisdictional matter, as to which the defendant need have no mens rea. The Court also rejected the argument that there was no evidence of “conspiracy.” The Court found that the defendants “joined together to use force and violence against the inmate, not in order to maintain discipline, but as way of punishing them.” The defendants “pummeled various prisoners in tandem.” Turning to the government’s cross-appeal, the Court found the sentences unreasonable. The Guideline ranges were 151 months for one defendant, and 15 months for the other. The district court imposed sentences of 12 months, and one-month, respectively. Noting that the district court “offered no reasoned justification other than [an accomplice who pled guilty] was getting a lower sentence,” the Court found that this “alone cannot account for dramatic variances.” The Court pointed to other cases in which similarly-situated corrections officers received higher sentences, and concluded that the district court “helped created the very unwarranted disparities it sought to avoid.” The Court noted that it did not intimate that no variance was justified on remand. It vacated the sentences for being unreasonable.

Madden: Constructive Amendment subject to Plain Error Review

In U.S. v. Madden, No. 11-14302 (Aug. 16, 2013), the Court reversed a conviction, because the district court constructively amended the indictment. The district court instructed the jury that it could convict a defendant for of violating 18 U.S.C. § 924(c) by carrying a firearm “during and in relation to a drug trafficking offense.” But the indictment charged him with possessing a firearm “in furtherance of” a drug trafficking crime. Because there are situations where a firearm possession would be “during and in relation to” drug trafficking without “furthering or advancing” that activity, the district court “broadened the possible bases for conviction beyond what was specified in the superseding indictment.” Resolving an intra-Circuit split, the Court held that a constructive amendment does not result in automatic reversal, but is subject to review (when, as here, unobjected to) for “plain error.” The Court held that the error was plain, and prejudiced Madden, because he may have been convicted of a charge not in the indictment. The Court found it “self-evident” that this error seriously affects the fairness, integrity, and public reputation of judicial proceedings.

Yates: Affirming Conviction for Disposing of Undersized Fish

In U.S. v. Yates, No. 11-16093 (August 16, 2013), the Court affirmed the convictions of a commercial fisherman for disposing of and concealing undersized fish to prevent the government from taking lawful custody of them. The Court rejected the argument that there was insufficient evidence to show that the fish were undersized. The Court also rejected the argument that a fish is not a “tangible object” for purposes of the statute. Finally, the Court found no abuse of discretion in the district court’s refusal to allow Yates to call the government’s expert as a witness, pointing out that Yates failed to give pre-trial notice of his intent to call this witness at trial, as required by Fed. R. Crim. P. 16(b)(1)(C).

Spencer: 2255 relief for career offender based on Begay retroactivity

In Spencer v. U.S., No. 10-10676 (Aug. 15, 2013), the Court held that a defendant who unsuccessfully challenged his “career offender” status at both his sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court (Begay v. U.S.) validates his argument and applies retroactively. The Court found that even though the Guidelines (including the career offender designation) are now advisory, they remain “the heart of the substantive law of a criminal procedural rule.” Consequently, an erroneous application of the career offender Guideline can “amount to a fundamental defect that inherently creates a complete miscarriage of justice,” and therefore can be the basis for § 2255 relief. Noting that the career offender Guideline follows from Congress express direction, the Court noted that its punishment is severe and it is not a “vanilla-flavored application” of Sentencing Commission policy. One of Spencer’s prior convictions was for sexual intercourse inflicting “physical or mental injury to a child,” in violation of Fla. Stat. § 827.03(1). The Court found that mental injury was not physical injury. Moreover, the statute was a strict liability statute, because consent of a minor victim to sexual intercourse was not a defense, and the defendant did not need to know his victim was a minor. The more recent Sykes decision did not apply because the offense was a strict liability crime. Consequently, under Begay, the inquiry was whether the Florida sex offense involved purposeful, violent and aggressive conduct similar in kind to burglary, arson, extortion, and use of explosives. The Court that held that it did not. The Court held that it was not bound by its prior holding against Spencer on this issue, because it was decided before Begay.

Curbelo: Translations did not violate Confrontation Clause

In U.S. v. Curbelo, No. 10-14665 (Aug. 9, 2013), the Court affirmed convictions for manufacturing and possessing large quantities of marihuana with intent to distribute. The Court held that Curbelo waived his Fourth Amendment challenge, based on U.S. v. Jones (2012), to the police’s use of a GPS device on his car, because he failed to raise this suppression issue before trial, as required by Fed. R. Crim. P. 12(b). This waiver applies even to “claims based on a new ruling from the Supreme Court.” Noting that, post-Alleyne, a challenge to the sufficiency of the evidence supporting the quantity of marihuana proved will no longer be reviewed for “clear error” by a sentencing court, but for whether a reasonable jury could find it beyond a reasonable doubt (drawing all inferences in favor of the verdict), the Court rejected the argument that the evidence was insufficient to prove that the defendant conspired to possess 1,000 or more marihuana plants. The jury heard testimony that the grow houses produced at least 1,190 plants. The Court also rejected a challenge to the jury verdict form, finding any omission “irrelevant.” The Court also rejected a Confrontation Clause challenge to the admission of English translations of the transcripts of taped conversations in Spanish. A cooperating witness – not the translator – testified that he reviewed the transcripts and that they accurately translated the conversations. The Court determined that the Confrontation Clause issue arose not out of the translations themselves, but out of the representation that the translations were correct. Here, the person who made that representation was not the translator, but a witness, who was subject to cross-examination, and who himself compared the recordings and transcripts. Consequently, no Confrontation Clause violation occurred. The Court distinguished other cases involving the certification by a person who had no first-hand knowledge of the facts, and who testified about others’ assessment of the facts. The Court rejected the argument that a jury verdict was required on the forfeiture count, pointing out that Fed. R. Crim. P. 32 only requires a jury verdict on the forfeiture of “specific property,” but the judge can decide forfeiture of “money judgments” – as here.

Fries: Insufficient evidence to support 922(a)(5) conviction

In U.S. v. Fries, No. 11-15724 (Aug. 6, 2013), the Court found insufficient evidence to support a conviction under 18 U.S.C. § 922(a)(5) for transferring a firearm to an out-of-state resident without being a licensed firearms dealer, and reversed the conviction. Because the defendant neglected to move for a judgment of acquittal in the trial court, the Court did not review the sufficiency issue de novo, but only to determine whether the record was “devoid of evidence” of an essential element of the crime. An essential element of § 922(a)(5) is that the defendant sold a firearm to an unlicensed person. The government conceded that there was no direct evidence of the licensure status of the person to whom Fries sold a firearm. The Court rejected the government’s argument that Fries knew he was “breaking the law,” noting that this subjective belief did not bear upon the objective state of affairs at the time of the sale. The Court also rejected the government’s argument that it could have proved that the buyer was unlicensed, pointing out that Due Process requires convictions to be based on what the government proved, not what it could have proved.

Lee: No habeas relief for Alabama death row inmate

In Lee v. Comm., Ala. Dep’t of Corrections, No. 12-14421 (Aug. 1, 2013), in a 128-page opinion, the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for two 1998 murders. The Court rejected Lee’s ineffective assistance of counsel claim, finding no prejudice could have resulted from deficient performance. The Court found that Lee presented no significantly new mitigating evidence, including evidence regarding Lee’s diminished mental capacity, and noted the “horrific and heinous facts of his two premeditated and cold-blooded murders.” The Court also rejected the challenge to the state trial court’s decision to override the jury’s recommendation of life without parole, and to impose a death sentence. The Court held that Ring v. Arizona “left open” whether such judicial override was constitutionally valid; Ring merely held that the Sixth Amendment requires the jury to make the finding of an aggravating circumstance that is necessary to impose the death penalty - a finding the jury made here. Finally, the Court rejected a Batson claim of discrimination during jury selection (the State used all of its 21 peremptory strikes and 17 of its 18 cause strike on black venire members). Applying AEDPA deference to the Alabama court’s “plain error” review of this claim, and rejecting Lee’s reliance on the too “summary” nature of the adjudication of this claim in the Alabama courts, the Court found no Batson grounds for habeas relief. The Court noted that 9 of the 12 jurors who ultimately served on the jury were black. The Court found insufficient evidence to support the claim that the local District Attorney’s office historically used race discrimination during jury selection. The Court credited the prosecutor’s race neutral reasons for striking several venire members.

Vernon: Anti-Kickback convictions stand

In U.S. v. Vernon, No. 12-12767 (July 26, 2013), in an 84-page opinion, the Court reversed the district court’s granting of a judgment of acquittal on violation of the Anti-Kickback statute, 42 U.S.C. § 1320a-7b(b), and affirmed convictions of health care fraud and violations of the Anti-Kickback statute. The scheme involved an Alabama specialty pharmacy’s payment of kick-backs for referrals of hemophilia Medicaid patients to receive highly profitable hemophilia “factor medication.” The Anti-Kickback statute specifically prohibits such payments. The Court rejected the argument that the Anti-Kickback statute was limited to improper doctor referrals, finding that it encompassed persons who received kickbacks even though they themselves could not prescribe medicine. The Court rejected the argument that the evidence did not such that the defendants acted “willfully,” pointing out that their own corporate compliance plan advised them to comply with federal anti-kickback laws. The Court rejected a duplicitous indictment argument, pointing out that the district court found it was untimely raised in the district court, and the argument was therefore waived. The Court also rejected challenges to jury instructions, finding, on “plain error” review, that the indictment and the trial evidence made a incorrect jury verdict “highly unlikely.” Again applying “plain error” review, the Court rejected a constructive amendment argument, finding that if anything the jury instructions “narrowed” the range of conduct that could be the basis for conviction. The Court also rejected a “good faith reliance on counsel’s advice” defense, finding that the jury could have relied on the fact that a defendant continued to pay kickbacks even after an attorney specialized in health care regulation advised him that he could not fit his payment relationship with a person referring patients under a kickback “safe harbor.” The Court also rejected a defendant’s challenge to a conspiracy conviction, pointing out that he joined the conspiracy to buy himself a 2008 Chevrolet Silverado 1500 pickup truck.

Charles: Confrontation Clause does not permit translator's out of court statements

In U.S. v. Charles, No. 12-14080 (July 25, 2013), the Court held that the admission of third-party testimony as to the out-of-court statements made by an interpreter who translated Charles’ creole language statements into English during the Customs and Border Protection’s interrogation of Charles violated the Confrontation Clause. However, because the issue was raised for the first time on appeal, and there was no binding Circuit precedent on point, the error was not “plain” – and the Court affirmed the conviction.




The Court noted that under Crawford v. Washington and its progeny, the Confrontation Clause excludes out-of court “testimonial” statements. Here, the translator’s statements were testimonial – the government sought admission of statements made during interrogation, for the purpose of proving their truth. The Court found that its precedent in United States v. Alvarez had not addressed the Confrontation Clause admissibility of translator statements, and its hearsay determination was therefore not dispositive.



[Marcus, J., specially concurring, would not have reached the merits of the Confrontation Clause issue.]

Castillo: No prejudice in juror missing a day of trial

In Castillo v. Florida Sec. of DOC, No. 12-13053 (July 22, 2013), the Court reversed the grant of habeas relief to a Florida inmate sentenced to 15 years imprisonment for robbery.




At trial, viewing the unclear facts in the light most favorable to the defendant, her defense counsel failed to object when the jury retired to deliberate even though one of the jurors had missed an entire day of testimony.



The district court had analogized the circumstances to the complete deprivation of the assistance of counsel, a per se prejudicial error under U.S. v. Cronic, 466 U.S. 648 (1984). Rejecting this reasoning, the Court noted that Cronic was limited to the “complete” denial of counsel. Here, Castillo’s counsel actively participated in the trial, giving an opening statement, cross-examining witnesses, and giving a closing argument urging acquittal. Consequently, assuming counsel’s failure to object was ineffective assistance, Castillo was still required to show “prejudice” under Strickland v. Washington. Castillo failed to show prejudice, because all of the witnesses who testified on the day the juror missed trial were prosecution witnesses, and all of the testimony they gave was incriminating (and Castillo did not testify in her defense).

Brown: Conflict-Free counsel not basis for 2255 relief

In Brown v. U.S., No. 09-10142 (July 10, 2013), the Court rejected a federal inmate’s § 2255 challenge to his death sentence for a 2002 murder of a federal employee.




The Court rejected the claim that trial counsel failed to adequately present mitigating evidence, finding that the topics cited in Brown’s § 2255 motion were already addressed at the original penalty phase. “Even if we could say that some of the information about Brown’s childhood drug and alcohol abuse was new and relevant mitigating evidence, we cannot fairly conclude on this record that there is a reasonable probability the jury’s balancing of the aggravating and mitigating factors would have been affected. Brown committed a brutal, unnecessary crime, his criminal record was lengthy, and the victim was beloved.”



The Court rejected the argument that one potential juror had not been asked follow-up questions about her views on the death penalty, finding that Brown did not previously raise the issue on direct appeal, having only mentioned in footnotes in his briefs unaccompanied by any claim of error. Appellate counsel were not ineffective in failing to raise this issue, because it had “so little merit.”



Finally, the Court rejected the argument that Brown should have been entitled to new, conflict-free habeas counsel, after his counsel had been reprimanded by the district court for contempt of court for having contacted jurors at the original trial without court permission. Brown alleged that his new attorney would have argued that the district court consider a juror affidavit. But the Court pointed out that this affidavit was not competent evidence, so “it would have been futile for the district court to have appointed new counsel in this case to further press the juror’s affidavit.”

Scrushy: Recusal motion correctly denied

In U.S. v. Scrushy, No. 12-10694 (July 15, 2013), the Court affirmed the denial of a motion to recuse a district judge from a case, and the denial of a motion for a new trial.




The motions arose out of evidence that jurors in the Scrushy trial had engaged in improper deliberations. During the investigation of this matter, the district judge held an ex parte meeting with U.S. Marshals who told him some of the juror evidence was forged.



The Court rejected the argument that the district judge must be recused because of this ex parte meeting, noting that the judge had resolved the matter in Scrushy’s favor. A disinterested observer would therefore not doubt the judge’s impartiality.



Turning to the motion for new trial based on newly discovered evidence, the Court found that one ground for this motion – selective prosecution – was not a proper ground: the decision to prosecute has no bearing on the integrity of the trial or verdict. In addition, selective prosecution challenges are waived if not raised before trial, and Scrushy offered only “feeble” reasons for having delayed bringing this motion until after trial.



The Court also found no merit in the claim that Scrushy was deprived of a “disinterested” prosecutor because a U.S. Attorney continued being involved after recusing herself from the case. The Court found that the U.S. Attorney’s “limited involvement” did not deprive Scrushy of a disinterested prosecutor.



Finally, the Court rejected as not “material” evidence that jurors had a romantic interest in the FBI case agent. “The assertion that a mere expression of attraction would infect the jury’s decision with bias strains credulity.”

Burns: No error in failing to give "no adverse inference from silence" instruction

In Burns v. Sec., Fla. Dep’t of Corrections, No. 11-14148 (July 8, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate sentenced to death for a 1997 murder. The Court rejected the argument that it was “structural error” for the Florida sentencing court to decline to instruct the jury, at the penalty phase, that it should draw no adverse inference from the defendant’s failure to testify. The Court pointed out that the Supreme Court has yet to reach the issue whether the failure to give a “no adverse instruction” is structural error. The Court also rejected the argument that the failure to give a “no adverse inference” instruction was not harmless. The Court pointed out that the state never commented on Burns’ failure to testify. Further, the prosecutor’s questions about the defendant’s lack of remorse were legitimate responses to the defendant’s evidence which attempted to show he was remorseful.

Victor: Affirming Physical Restraint Enhancement

In U.S. v. Victor, No. 12-12809 (June 27, 2013), the Court affirmed a 121-month sentence imposed for bank robbery, brandishing a firearm, in violation of 18 U.S.C. §§ 2113(a) and 924(c)(1)(A)(ii).




The Court rejected a challenge to the imposition of a two-level Guideline “physical-restraint” sentence enhancement. The Court found that Victor, by threatening a bank lobby employee with what the employee believed to be a gun to prevent her from escaping, “physically restrained her within the Guidelines’ meaning.”



The Court also rejected a substantive reasonableness challenge to the sentence. The sentence was within the Guidelines range, and the district court considered the § 3553(a) factors.

Bane: Fines Subject to Apprendi

In U.S. v. Bane, No. 11-14158 (June 28, 2013), the Court vacated the restitution and fine portions of a sentence, but otherwise affirmed the term of incarceration imposed on a defendant convicted of health care fraud and of making false claims against the government.




The Court affirmed the imposition of a 20-level enhancement for an offense involving a loss in excess of $7 million, rejecting Bane’s argument that the loss amount should not include the value of oxygen provided that was medically necessary for patients. The Court noted that a Guideline Application Note provides that no credit for value received should be given in cases in which “regulatory approval by a government agency” was obtained by fraud. The Court applied this rule, because Bane obtained Medicare’s approval to pay for oxygen by fraudulently representing that the requisite lab test had been performed. [Dissenting from this portion of the decision, Judge Jordan reasoned that “regulatory approval” referred to an FDA-type approval of the introduction of a drug into the market.]



For the same reason, the Court rejected Bane’s challenge to the finding that his crime involved 270 victims.



The Court also affirmed the imposition of a “sophisticated-means” enhancement, pointing out that Bane recruited oximetry labs to participate in the scheme, installed software, and falsified test results.



The Court reversed the restitution order, pointing out that restitution should not result in a “windfall” to the victims. Here, 80 to 90 percent of the services Bane provided were medically necessary, and the victims paid no more for the services than they otherwise would have. On remand, Bane would bear the burden of proving the amount of the offset to which he was entitled.

Turning to the fine, the Court agreed with Bane that the $3 million fine violated Apprendi because exceeded the $ 2.5 million maximum amount authorized by the jury’s convictions – the fine was based on the loss amount under an alternative calculation by the district court, not submitted to the jury. Reviewing the issue for plain error, and applying a recent Supreme Court case, the Court held that fines are subject to Apprendi. The Court therefore found that the $3 million was “plain error.”

Rojas: Marriage Fraud Prosecution Barred by Statute of Limitations

In U.S. v. Rojas, No. 12-15364 (June 20, 2013), the Court held that a marriage fraud prosecution was barred by the five-year statute of limitation, because the indictment was filed more than five years after the date the couple married.




The government claimed that the crime was not complete until investigators interviewed the couple and “became aware of the fraud” and of the marriage’s unlawful purpose, or until the defendants took the additional step of filing for immigration benefits. Rejecting these arguments, the Court held that marriage fraud is not a “continuing offense,” but is complete once the couple “enters into” the marriage.

Valerio: Stop and frisk "well outside" Terry

In U.S. v. Valerio, No. 12-12235 (June 20, 2013), the Court held that a seizure of marihuana plants in a Deerfield Beach, Fla., warehouse was not authorized by the Fourth Amendment, and that this evidence therefore should have been suppressed.




Surveillance of Valerio, including a K-9 sniff outside a unit he rented at a warehouse, failed to find evidence that, as police suspected, he was involved in a marihuana grow operation. One week after this unsuccessful surveillance ended, police went to Valerio’s home, waited across the street until he emerged and entered his truck. At that point, the officers blocked his exit, approached him with gun drawn and pointed in his direction, ordering him out of his truck. Police conducted a full-body pat-down search of Valerio. Police then questioned Valerio, who eventually admitted to growing marihuana at the warehouse.



The Court noted that the constitutionality of Valerio’s seizure in his driveway turned on whether it was a valid warrantless “stop-and-frisk” under Terry v. Ohio. The Court noted that “[t]he investigative stop contemplated by Terry is not a policing tool that can be constitutionally deployed in any context in which law enforcement has reasonable suspicion that an individual is involved in criminal activity. Rather, it may be used only within the ‘rubric of police conduct’ addressed in Terry, for which the timing and circumstances surrounding the investigative stop matter.”



Here, the seizure was “well outside” Terry. It was “not responsive to the development of suspicion within a dynamic or urgent law enforcement environment. Rather, the officers went to Mr. Valerio’s home nearly a week after they had last observed him do anything.” In view of the lack of exigency, the officers should have acted in conformity with the Fourth Amendment. The Court vacated the denial of the motion to suppress and remanded the case to the district court, pointing out that evidence obtained as a result of an illegal seizure “is suppressible as fruit of the poisonous tree.”

Pacchioli: Jury read-back not needed when it would not 'clearly benefit" defendant

In U.S. v. Pacchioli, No. 12-12913 (June 19, 2013), the Court affirmed convictions of contractors convicted of paying kickbacks to hospital facility managers to obtain contracts with South Florida hospitals, in violation of 18 U.S.C. § 666(a)(2).




The Court rejected one defendant’s claim that the statute of limitations barred his conviction because he agreed to give a bribe more than five years before the filing of the indictment. The Court noted that the statute of limitations begins to run when the crime is “complete.” The Court pointed out that the bribery statute is phrased in the alternative, criminalizing the agreement to give a bribe, offering to give a bribe – or giving the bribe. Here, the government alleged, and the jury found, the giving of the bribe – the installation of free generators at the hospital facility manager’s home – within the five-year limitations period.



The Court rejected a challenge to the sufficiency of the evidence, pointing the “remarkable coincidence” that the defendant gave free goods and services to the three hospital facility managers who were awarding him contracts.



The Court also rejected the argument that the district court abused its discretion when it failed to allow defense cross-examination of a government witness regarding a statement that the witness’s lawyer had made earlier about the witness’s mild cognitive impairment. The Court noted that the witness was subject to extensive cross-examination, which gave the jury the opportunity to evaluate the witness. Thus, an error in excluding the testimony was “harmless.” The Court noted that the lawyer’s statement was not admissible under Fed. R. Evid. 801(d)(2), because this rule applies only to the agents of party opponents, and the government’s witness was not a party opponent.



The Court rejected the argument that the district court abused its discretion when, in response to a request from the jury, it declined to read back requested trial testimony. The Court noted that the requested testimony “did not clearly benefit” the defendant’s case, and the defendant therefore could not show prejudice.



Finally, the Court rejected one defendant’s claim that the indictment was deficient, noting that it was being raised for the first time on appeal. http://www.ca11.uscourts.gov/opinions/ops/201212913.pdf

Reaves: No prejudice in failing to present voluntary intoxication defense

In Reaves v. Sec., Fla. Dep’t of Corrections, No. 12-11044 (May 30, 2013), the Court reversed the grant of habeas relief to a Florida death row inmate, finding that the district court erred in determining that Reaves suffered “prejudice” as a result of his trial counsel’s failure to present a voluntary intoxication defense.


The Court noted that most of the expert testimony supporting a voluntary intoxication defense would have been inadmissible at Reaves’ retrial. The expert opinions were based not on cocaine use alone, but on years of chronic substance abuse – a factor that would not be relevant under Florida law. In addition, the Court pointed to evidence of premeditation, rejecting the argument that killing a police officer was so clearly ill advised: “people sometimes make bad decisions and do stupid things.”

The Court, however, rejected the State’s attempt to appeal the district court’s grant of an evidentiary hearing regarding ineffectiveness of counsel at the penalty phase. The Court held that this was an interlocutory non-appealable order.

Philidor: IRS verifies identifying information before issuing refunds

In U.S. v. Philidor, No. 13-13679 (May 29, 2013), the Court rejected the argument that the government failed to prove that the fraudulent tax return filing offense involved more than 250 victims and therefore qualified for a sentence enhancement under USSG § 2B1.1(b)(2)(C).




The Court noted that the defendants’ bank statements listed over 250 Social Security numbers of recipients of tax refunds. The district court could infer “based on common sense and ordinary human experience” that the Internal Revenue Service verifies identifying information, like Social Security numbers, before issuing a tax refund. Consequently, the refunds were associated with real people. In addition, the district court did not need to find that the persons were living, because the Guideline does not distinguish between living and deceased persons.

Whatley: In court identifications not subject to prescreening

In U.S. v. Whatley, No. 11-14151 (June 3, 2013), the Court affirmed bank robbery convictions and reversed an “abduction” sentence enhancement.

The Court rejected the argument that the admission of in-court identifications of Whatley by bank employees violated Due Process. The Court found that the recent decision in Perry v. New Hampshire, 132 S.Ct. 716 (2012), held that judicial pre-screening of reliability is not required to address identifications made in suggestive circumstance (for example, as Whatley claimed, in-court identifications made years after the incidents), unless the identifications were the result of improper police conduct. Here, the identifications were made in court, where Whatley was able to confront the eyewitnesses and highlight the frailties of their identifications.

The Court rejected the argument that the district court erroneously admitted under FRE 404(b) evidence that Whatley attempted another bank robbery. The Court found that the “similarities between the charged robberies and the uncharged bank robbery ... marked the crimes as the handiwork of Whatley.” They therefore suggested a modus operandi.

The Court also rejected (2-1, Jordan, J., dissenting) the argument that the district court should have granted a new trial because it was discovered that a newspaper article about one of Whatley’s robberies was considered by the jury during deliberations, as the result of a computer glitch in the scanning of trial exhibits. The district court conducted a thorough examination of each juror, and found that the jurors did not consider the article “until the final hours of their deliberations” – a period during which they remained deadlocked. Finally, the government’s evidence on the one count of conviction decided after the jury saw the document was “overwhelming.”

Turning to sentencing, the Court held that a sentence enhancement for “abduction” pursuant to USSG § 2B3.1(b)(4)(A) was erroneously imposed based on Whatley’s herded the bank employees inside the bank. The Court noted that Whatley never took the employees outside the bank. The Court noted that the dictionary definition of “abduction” refers to “the act of leading someone away,” as in a kidnapping.

Diaz-Calderone: Prior plea colloquy qualifies defendant for "crime of violence"

In U.S. v. Diaz-Calderone, No. 12-12013 (May 23, 2013), the Court affirmed a finding that a defendant’s prior aggravated battery on a pregnant victim, in violation of Fla. Stat. § 784.045(1)(b) was a “crime of violence” for purposes of imposing a 16-level Guideline sentence enhancement on a deported alien who reentered the United States illegally.

The Court acknowledged ambiguity in the Florida statute regarding whether it constituted a “crime of violence,” because this statute encompasses both a mere “touching,” and a striking or the causing of bodily harm.

However, using the modified categorical approach, the district court correctly relied on the defendant’s plea colloquy, and not just the probable cause arrest affidavits (which would not have sufficed to determine whether the prior conviction was a “crime of violence.”).   The tape of the state judge’s acceptance of Diaz-Calderone’s nolo contendere plea indicated that Diaz-Calderone admitted to what the affidavit said he did, namely striking the pregnant victim.  Therefore, the district court correctly concluded that in his case the prior aggravated battery was a crime of violence.

Dupree v. Warden: Recommending Stricter Review of Unobjected to R&R Issue

In Dupree v. Warden, No. 11-12888 (May 7, 2013),


the Court vacated the denial of habeas relief because the district court failed to address all issues raised in a habeas petition, in violation of Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc) (district court must address all issues raised in a habeas petition, regardless of whether relief is granted or denied).

The Court noted, however, that the issue that the district court had failed to address was also not addressed by a Magistrate Judge in his Report and Recommendation, and that the habeas petitioner had failed to object in the district court to the Magistrate Judge’s failure to address this issue. The Court noted that in the Eleventh Circuit, the unobjected-to legal issue is nonetheless reviewed de novo by the Court of Appeals. The Court added a lengthy “recommendation,” urging the full court en banc, or by administrative rule-making, to change its standard of review. The Court noted that in a majority of Circuits a party’s failure to object to a Report and Recommendation results in waiver of that issue, with plain error review only when in the “interests of justice.” The Court advocated adoption of this stricter rule, noting that it prevents “sandbagging” the district court.