Feaster: VA Theft is Felony not Misdemeanor

In U.S. v. Feaster, No. 14-13978 (Aug. 25, 2015), the Court rejected the defendant’s argument that her convictions for theft under 18 U.S.C. § 641 should have been misdemeanors, not felonies. The Court noted that under the statute, a punishment of less than one year only applies if the aggregate amount of all counts of conviction did not exceed $1,000. The fact that one count of conviction was for less than $1,000 does not entitled a defendant to have a conviction become a misdemeanor. The Court also rejected Feaster’s challenge to the “sophisticated means” sentence enhancement. The Court noted the totality of the scheme, including the two years for which the conduct was not detected. Feaster used her inside information and her position at the Veterans Administration to perpetrate the fraud. She prepared a fraudulent purchase order to obtain approval to use a government authorized Purchase Card. She obscured her personal purchases by using the Purchase Card. She made fictitious entries in the VA’s system to reconcile the original purchase order with the amount of money she had charged on the Purchase Card.

Hill: Resisting an officer with violence qualifies under ACCA elements clause

In U.S. v. Hill, No. 14-12294 (Aug. 26, 2015), the Court, affirming a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), found no error in a district court’s denial of a defendant’s request to add the word “knowingly” to its jury instruction on “constructive possession.” The Court found that the district court’s instruction impliedly required that Hill knowingly possess the firearm. On a cross-appeal by the government of the district court’s finding that two prior convictions did not qualify as “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), the Court agreed with Hill that this argument was foreclosed in light of the Supreme Court’s recent Johnson decision. However, the Court (sua sponte: the government did not raise this point on cross-appeal) found that one prior conviction, for resisting an officer with violence, in violation of Fla. Stat. § 843.01, qualified under ACCA’s elements clause. The Court therefore remanded the case for the district court to consider whether the prior Fla. Stat. § 843.01 conviction, coupled with two prior drug offenses, might qualify Hill for a sentence under ACCA.

Maiello: Delay of Amendment 782 to November 2015 is valid

In U.S. v. Maiello, No. 15-10532 (Aug. 19, 2015), the Court held that a drug offender subject to an Amendment 782 sentence reduction was not eligible to immediately benefit from the reduction because of the Sentencing Commission’s decision to delay any release until November 2015. The Court rejected the argument that the Sentencing Commission improperly considered offenders’ rehabilitation in its delay decision, in violation of Tapia v. U.S. The Court noted that Tapia applied to a decision to impose a sentence, not to a decision to reduce a sentence under 18 U.S.C. § 3582(c). The Court also rejected the argument that the Commission’s delay decision violated the Administrative Procedure Act, pointing out that policy statements of the Commission are not subject to the APA. The Court also found that the Commission’s decision was reasonable, not arbitrary and capricious. Finally, the Court rejected the argument that the Commission’s delay decision encroached on the judicial power. The Court noted that Congress delegated to the Sentencing Commission the power to specify the circumstances under which sentences may be reduced.

Sperrazza: Structuring need not involve a "cash hoard"

In U.S. v. Sperrazza, No. 14-11972 (Aug. 17, 2015), the Court affirmed convictions of tax evasion and structuring currency transactions, and a forfeiture order of $870,238.99 on a Georgia physician. The Court (2-1) rejected the argument that a “structuring” violation must involve a defendant who has more than $10,000 on hand (a “cash hoard”). The Court explained that a person who has $9,000 on hand, and knows more cash is on the way, and deposits the $9,000 to evade the $10,000 reporting requirement can be guilty of “structuring.” The Court also rejected Sperrazza’s claim that the $870,238.99 forfeiture violated the Excessive Fines Clause of the Eighth Amendment. The Court noted that under the statute the defendant was subject to a fine of up to $500,000. The Court also rejected the argument that the forfeiture was excessive because Sperrazza earned the money lawfully. The Court pointed out that the structuring “decreased the likelihood the IRS would detect the underlying tax evasion.”

Willner: Deliberate Ignorance Instruction Proper

In U.S. v. Willner, No. 12-15322 (Aug. 3, 2015), the Court reversed a medicare fraud conspiracy conviction for insufficient evidence, but otherwise affirmed convictions arising out of a scheme that submitted in excess of $200 million in fraudulent claims. As to one convicted co-conspirator, the Court noted the absence of any direct evidence of her participation in the conspiracy, and rejected as too weak the inferences the government attempted to draw from circumstantial evidence. The Court rejected other defendants’ argument that they should have been a theory-of-defense instruction based on Florida law, finding that this law did not have influenced the jury based on the way the government presented its case. Joining the majority of circuits to have considered the issue, the Court held that it was proper to give a jury a deliberate ignorance instruction with regard to whether a defendant knew the unlawful purpose of a conspiracy, without giving this instruction to whether the defendant willfully joined in the conspiracy. The Court found that the district court abused its discretion when it allowed a government witness to give opinion testimony, and when it not allowing the defense to cross-examine this witness about the basis for his opinions. However, the error was harmless in light of the overwhelming evidence of guilt.

Puentes-Hurtado: Claims reviewable on appeal despite appeal waiver

In U.S. v. Puentes-Hurtado, No. 13-12770 (July 22, 2015), the Court held that an appeal waiver in a plea agreement did not bar a subsequent appeal on a claim that the plea was involuntary because counsel rendered ineffective assistance, because the government breached the plea agreement, nor on a claim that there was an insufficient factual basis to support the plea – such a claim goes to whether the guilty plea is enforceable. The Court declined to reach the ineffective assistance of counsel claim, finding the record insufficiently developed, and noting that the defendant could file a motion to vacate under 28 U.S.C. § 2255. Reviewing the issue for “plain error,” the Court found that even if the defendant only admitted to physically transporting the drug proceeds, this sufficed to support his guilty plea for a narcotics distribution conspiracy. Again reviewing for “plain error,” the Court found that even if the government breached the plea agreement by presenting drug quantity evidence that supported a higher sentence, the district court would have imposed the same sentence even based on a lower drug quantity. The defendant failed to establish a reasonable probability that the district court would have imposed a lower sentence.

Khan: Defense ran the risk that video conferencing witnesses would fail

In U.S. v. Khan, No. 13-14048 (July 23, 2015), the Court affirmed convictions for providing material aid to terrorists. The Court rejected the challenge to a translator’s use of bracketed words to explain the meaning of intercepted telephone conversations. The Court found that the bracketed words appropriately transported “living thoughts” from one language to another. The Court also rejected challenges to rulings made during the testimony of the government’s case agent. The Court found that any error in admitting as expert testimony the case agent’s non-expert testimony about the meaning of words used in conversations was harmless, in light of other testimony on the same topic. Though acknowledging that prosecutors should not permit investigators to give “overview testimony” about the results of a criminal investigation, the Court found that the case agent testified based on his personal knowledge of recorded conversations. The Court found no error in the limitation of cross-examination about a government informant, finding that the topics were irrelevant, or merely aimed to bolster the defendant’s credibility, not to undermine a witness’s credibility. The Court found no error in not allowing the defense to cross-examine the case agent about a Pakistani police report that purportedly exonerated Khan. The report was not in evidence, and offered no conclusions, but simply relayed hearsay statements. During the trial, the video-conference testimony of defense witnesses from Pakistan ceased when internet connection failed, most likely as the result of Pakistan police interference. The district court denied a defense request for a continuance to obtain the testimony. The Court found that the defense elected to run the risk that, in failing to obtain Pakistan government approval for the depositions, the depositions would be shut down. Moreover, it was undetermined how long it would take to re-establish internet connection.

Hamilton: Appeal of Denial of 60(b) motion requires COA

In Hamilton v. Sec., Fla. Dep’t of Corrections, No. 14-13535 (July 15, 2015), the Court held that a habeas petitioner who appeals the denial of Rule 60(b) motion is required, like a petitioner who appeals the denial of habeas relief under 28 U.S.C. § 2255, to obtain a Certificate of Appealability (“COA”) in order for the Court of Appeals to consider the appeal. The Court rejected Hamilton's argument that intervening Supreme Court cases called into question the Circuit precedent that required a COA in order for a habeas petitioner to appeal the denial of a Rule 60(b) motion – and the denial of a Rule 59(e) motion. Turning to whether Hamilton, a death row inmate, was entitled to COA, the Court held that he was not, finding his arguments “squarely foreclosed” by Circuit precedent.

Aunspaugh: Erroneous "Honest Services" Jury Instruction

In U.S. v. Aunspaugh, No. 12-13132 (July 8, 2015), the Court reversed convictions for mail fraud because of erroneous jury instructions on what constitutes “honest services.” The case involved an Electric Cooperative whose general manager steered contracts to a company that hired one of the Cooperative’s employees to do the work, and made secret payments to the general manager for this arrangement. The Court found that the evidence supported a finding of a “kickback,” and not a merely egregious conflict of interest, for purposes of the “honest services” fraud statute. However, the jury instructions erroneously did not require the jury to acquit on a finding that the scheme involved only self-dealing, not kickbacks. The Court therefore reversed the conviction, even though the evidence supporting the defense theory was “weak.” Because the money laundering conviction was predicated on the honest fraud conviction, the Court vacated this conviction as well. The Court, however, affirmed the structuring transaction convictions. The Court found that a defendant cashed checks for amounts just below the reporting requirements. The Court noted that the less serious of the two structuring statutes does not require the violation of another law. In light of its vacatur of other convictions, the Court vacated the sentence on the remaining structuring count, noting that the sentence “may not have been the same” without the other convictions.

Ruggierio: No age of victim knowledge required for unlawful production of child pornography

In U.S. v. Ruggiero, No. 13-14773 (June 30, 2015), the Court rejected the argument that 18 U.S.C. § 2251(a) was unconstitutional because it does not require the government to prove, for the offense of producing child pornography, that a defendant knew the victim was a minor. The Court noted that while scienter is generally an element of a crime, there is an exception for sex offenses, where crimes like rape do not require knowledge of the age of the victim. The Court also noted that producing child pornography is not the type of “wholly passive” crime for which mens rea can be required. The Court stated: “We have no doubt that a person of ordinary intelligence would know, upon reading § 2251(a), that it prohibits persuading a 15-year old to engage in sexually explicit conduct for the purpose of photographing her with a cell phone camera that has traveled in foreign commerce.”

Williams: "False" is distinct from "Fictitious"

In U.S. v. Williams, No. 13-13042 (June 22, 2015), the Court held that the use of fake checks bearing the account and routing numbers of another person’s bank account qualified as passing a “false or fraudulent” instrument under 18 U.S.C. § 514. The Court rejected the argument that “false and fictitious” referred to non-existent types of instruments, such as a three-dollar bill. The Court noted that the term “false” was distinct from the term “fictitious.” The Court noted Williams’ argument that he could have been prosecuted under a separate “counterfeited” security statute, noting that a defendant can be prosecuted for similar conduct under separate statutes. The Court also rejected Williams’ challenge to his conviction under 18 U.S.C. § 1029 for unauthorized use of an “access device,” finding that a bank routing number plainly qualified as an access device. Finally, the Court rejected Williams’ argument that his offense of violating his terms of supervised release did not qualify as a “failure to appear” offense under 18 U.S.C. § 3146(b).

Cavallo: Vacating conviction because of prohibition on consultation with counsel

In U.S. v. Cavallo, No. 12-15660 (June 22, 2015), the Court reversed the conviction of one defendant because the district court violated his Sixth Amendment right to counsel when it prohibited him from consulting with his attorney during the three days of trial and two overnight recesses during which his testimony lasted, but affirmed the convictions and sentences of the two other defendants, except for the restitution portion of the judgment. Under Geders v. U.S., 422 U.S. 80 (1976), the district court’s prohibition on a criminal defendant’s consultation with counsel violates the Sixth Amendment. The Court noted that this holding was subsequently limited by Perry v. Leeke, 488 U.S. 272 (1989), which held that a prohibition on consultation during a fifteen-minute recess did not violate the Sixth amendment. But here, Geders, not Perry, governed, because the prohibition extended to two overnight recesses. The Court noted that the district court permitted the defendant to consult his attorney concerning his “constitutional rights,” but found that this limitation did not salvage the prohibition, pointing out that based on other statements, the defendant understood the prohibition to prohibit all contact with his attorney, and noting that the Sixth Amendment allows more than communication about constitutional rights. Accordingly, the Court vacated this defendant’s conviction. Turning to the argument of a co-defendant, the Court found that the district court did not abuse its discretion once it found that, post-verdict a defendant initiated a contact with a juror, and as a sanction for this violation of Middle District of Florida Rule 5.01(d), and declined to consider the evidence of extrinsic influence on the jury’s verdict suggested by an email from a juror. The Court noted the strong interest in protecting jurors against needless harassment from unsuccessful parties. The Court noted that Fed. R. Evid. 606(b) narrowly limits the kind of testimony a juror can give about a verdict. Turning to sentencing, the Court found no abuse of discretion in the district court’s loss calculation, finding that a preponderance of the evidence supported including certain transactions for which the jury acquitted the defendants. The Court also rejected a substantive reasonableness challenge to the sentence, pointing out that having sought a lenient sentence for his co-defendant spouse, one defendant now could not complain that his sentence was disproportionately higher than hers. As to restitution, the Court found that the district court erred in failing to offset any value that the victim may have derived from a fraudulent scheme. The Court therefore vacated the restitution portion of the order, and remanded for resentencing on this part of the judgment.

Frediani: War Suspension Act suspends statute of limitations

In U.S. v. Frediani, No. 14-11998 (June 22, 2015), the Court rejected the argument that the Wartime Suspension of Limitations Act did not apply to suspend the five-year statute of limitations for charges of conspiracy to commit aircraft parts fraud. The Wartime Suspension of Limitations Act suspends the five-year statute of limitations for fraud against the United States until 5 years after the termination of hostilities, as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress. No such proclamation had been made with regard to the conflict in Iraq (or Afghanistan) and Frediani argued that “indefinite tolling” would result because the United States will forever be engaged in small conflicts involving terror. The Court rejected this consideration as “irrelevant,” because the statute is “clear.” The Court also rejected the argument that the district court abused its discretion when it allowed the government to introduce, under Fed. R. Evid. 404(b), evidence of six additional fraudulent contracts that were not charged in the indictment. The Court found that the necessity to prove intent became more important when Frediani implied that he had only made a mistake.

Rosales-Bruno: Affirming 60-month upward variance for illegal re-entrant

In U.S. v. Rosales-Bruno, No. 12-15089 (June 19, 2015) (2-1), the Court affirmed the imposition, at resentencing, of an 87-month sentence for illegal reentry, rejecting the argument that the upward variance from the guideline range of 21-27 months was substantively unreasonable. The resentencing followed the Court’s vacatur of an earlier 87-month sentence because it was based on the district court’s erroneous finding that a prior conviction for “false imprisonment” qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) – which, under the “modified categorical approach,” it did not. The Court noted the “considerable discretion” of sentencing courts. The prior convictions involved shoving a girlfriend into a stove and threatening to burn her, and, while on bond for this offense, assaulting this girlfriend and threatening to kill her. The Court noted that these offenses may properly be considered as violent crimes for sentencing purposes other than for the application of § 2L1.2(b)(1)(A)(ii). The Court also noted that Rosales-Bruno’s criminal history included several driving-related convictions, such as driving under the influence of alcohol. The Court rejected the argument that the district court failed to distinguish Rosales-Bruno’s criminal history from that of the “average” category V illegal reentrant with a felony conviction. The Court noted that this would require district courts to have a detailed profile of the average offender for each crime, including the average number and nature of his prior crimes. The Court noted that it does not require such “explicit comparison,” and that district court are “far more familiar than we are with other convicted-felon, category V illegal reentrants.” The Court also rejected the dissent’s criticism of the Court for sending a message to district courts that it will not vacate unreasonably long sentences, only unreasonably short ones. The Court cited on published case and two unpublished ones in which it had reversed unreasonably long sentences. The Court noted that it had vacated less than 1% of sentences on substantive reasonableness grounds. The Court further noted that district courts within the Circuit had varied downward for 9,307 sentences, and upwards for just 828 sentences. [Judge Wilson, dissenting, found that the published case on which the majority relied had reversed the sentence on procedural grounds, not substantive grounds.].

Wingo: District Court should have sua sponte ordered competency hearing

In U.S. v. Wingo, No. 13-14435 (June 17, 2015), the Court reversed a money laundering conviction, after a guilty plea, and an 84-month sentence, because the district court failed to sua sponte order a competency hearing, as required by 18 U.S.C. § 4241(a) when there is reasonable cause to believe that a defendant is mentally incompetent. After the defendant was adjudged guilty, the defense submitted an extensive sentencing memorandum, accompanied by lengthy medical reports, which indicated that had a diminished mental capacity, evidenced by brain atrophy and dysfunction. The Court recognized that the district court could not possibly have known of the extent of Wingo’s mental health problems until counsel filed the sentencing memorandum. The Court further recognized that the sentencing memorandum was directed towards obtaining a reduced sentence, and did not request a competency hearing. Nevertheless, the district court was required by § 4241(a) to sua sponte inquire into Wingo’s competency, and its failure to do so was an abuse of discretion. The Court held that if Wingo is determined to have been incompetent at the time of his guilty plea, the conviction and sentence must be vacated, subject to the government’s right to try him should he become competent.

Arvelo: Guilty Plea does not waive ineffective assistance claim

In Arvelo v. Sec., Fla. Dep’t of Corrections, No. 14-11441 (June 10, 2015), the Court reversed the denial of habeas relief to a Florida inmate serving a 60-year sentence for attempted sexual battery and kidnapping with the intent to commit sexual battery, who claimed his lawyer was ineffective in failing to move to suppress his confession. A Florida habeas court had rejected Arvelo’s ineffective assistance claim on the ground that Arvelo waived that claim by pleading guilty. The Court found that this ruling was contrary to well-established law, which holds that the entry of a plea does not waive an ineffective assistance claim. The district court reasoned that evidence other than Arvelo’s confession supported the conviction. Rejecting this finding, the Court noted that Arvelo’s confession was the only direct evidence supporting the “intent to commit sexual battery” element of the offenses. The District Court also reasoned that by pleading guilty, Arvelo received the “benefit” of lower, 60-year, sentence. The Court noted that this was the wrong analysis. What mattered was not the sentence, but the viability of the motion to suppress. The District Court further reasoned that Arvelo did not prove that his confession was involuntary. But because no evidentiary hearing was held, the factual record was not developed on the voluntariness of the confession. The Court therefore remanded the case for the district court to hold an evidentiary hearing, and to reconsider the ineffective assistance claim.

Wilson: Affirming convictions for fraudulent IRS refunds

In U.S. v. Wilson, No. 13-14846 (June 5, 2015), the Court affirmed the convictions and sentence of a defendant charged with converting to his own use fraudulently obtained IRS tax refunds. The Court rejected Wilson’s challenge to the sufficiency of the evidence, pointing out that the payees of the tax refunds did not file the tax returns associated with the refunds, and that Wilson’s check-cashing business contained no records that he had verified the identities of the payees, as required by law. The Court rejected the argument that the mere use of a person’s “name” sufficed to show use of a “means of identification” for purposes of aggravated identity theft. Acknowledging a circuit conflict, the Court ruled that the use of a name suffices. The Court also rejected the argument that the district court erroneously admitted the testimony of an accomplice. The Court noted that it was reviewing the issue for “plain error,” because the district court, pre-trial, did not rule definitively, and, after it ruled at trial, Wilson did not preserve his objection. The Court found no plain error, because this evidence was “intrinsic” to the charged crimes. The Court also rejected a Confrontation Clause challenge to the admission of text messages sent by Wilson’s defense attorney to a law enforcement agent regarding the delivery of boxes of documents. The Court found that the messages were “non-testimonial,” because they were informal, haphazard communications. Turning to sentencing, the Court rejected the argument that the district court should not have included refund checks in its loss calculation, because these checks were not charged in the indictment. The Court found that these checks were part of the “pattern” proved at trial.

Perkins: Defendant clogged the gears of justice

In U.S. v. Perkins, No. 13-13444 (June 1, 2015), the Court affirmed the convictions and sentence of a defendant charged with a credit card fraud scheme. The Court declined to review Perkins’ claim that the district court forced appointed counsel on him, and held a trial in his absence in violation of Fed. R. Crim. P. 43, because Perkins invited any error. The Court found that Perkins tried to “sabotage” the criminal proceedings by refusing to leave his holding cell for trial, and became violent when the district judge came to see him to persuade him to come to the courtroom. The Court also rejected the claim that Perkins was not competent to stand trial, citing recorded phone conversations from jail in which Perkins discussed how he could use Rule 43 to avoid a conviction. The Court rejected the argument that a photo array was unduly suggestive because Perkins was the only man in the lineup with gold teeth, finding this fact alone did not make the lineup unduly suggestive. Turning to sentencing, the Court rejected Perkins’ challenge to the two-level obstruction of justice enhancement: “Mr. Perkins willfully set out to clog the gears of the judicial process.” The Court rejected a substantive reasonableness challenge to the 360-month sentence, noting that the scheme involved hundreds of fraudulent credit cards and more than 100,000 account profiled that claimed hundreds of victims. “Mr. Perkins presents a danger to society.”

Griffin: Rule 60(b)(5) does not apply to denial of habeas relief

In Griffin v. Sec., Fla. Dep’t of Corrections, No. 14-14851 (May 28, 2015), the Court denied a defendant’s argument that he was entitled to a certificate of appealability (COA) because jurists of reason could debate whether Federal Rule of Civil Procedure 60(b)(5), which permits litigants to challenge a final judgment when applying it prospectively is no longer equitable, permitted him to raise anew procedurally-defaulted ineffective-assistance-of-counsel claims. The Court held that Rule 60(b)(5) does not apply to the denial of habeas relief.

Brester: No Brady violation in failure to disclose plea agreement loss provisions

In U.S. v. Brester, No. 13-15311 (May 20, 2015), the Court held that because Brester was not prejudiced by the failure to disclose his cooperating co-conspirators’ plea agreement provisions limiting their loss amount for sentencing purposes, this non-disclosure did not violate Brester’s rights under Brady v. Maryland. Turning first to the question of whether it had jurisdiction to review the district court’s denial of Brester’s motion for a new trial, the Court noted that Brester had failed to file a second notice of appeal from the denial of this motion. Although the “better practice” is to perfect a separate appeal from the denial of a motion for a new trial, when the government is not prejudiced – here, it briefed the issue on appeal – the Court has jurisdiction. Next addressing the merits, the Court found that the loss amount limitation of the co-conspirators’ plea agreements would merely have been cumulative impeachment evidence, which does not establish “prejudice” under Brady. The Court noted these co-conspirators' admissions, on cross-examination, of their motivation for their testimony against Brester.

Siegelman: Affirming 78-month sentence for former Alabama Governor

In U.S. v. Siegelman, No. 12-14373 (May 20, 2015), the Court affirmed the denial of a motion for a new trial, and the 78-month sentence, imposed at resentencing, of the former Alabama Governor convicted of fraud. Relying on the “law of the case” doctrine, the Court rejected Siegelman’s claim the U.S. Attorney continued to be involved in his prosecution after her disqualification based on conflict of interest. The Court noted that it had already rejected this argument when raised by a co-defendant, ruling that while the law categorically prohibits an interested person from controlling a defendant’s prosecution, it does not forbid an interested person from having any involvement in the prosecution. As to his sentence, Siegelman argued that the district court failed to explain why it treated certain transactions as part of “relevant conduct.” Because Siegelman did not object to the district court’s failure to explain why these transactions qualified as “relevant conduct,” the Court reviewed the issue for “plain error.” The Court found no plain error, because it was clear from the record that, even though the district court made no explicit finding, its loss calculations had relied on specific transactions. The Court also rejected the argument that the transactions should not have qualified as “relevant conduct.” The Court found a substantial connection with the bribery offense of conviction, because there was a common accomplice, a common victim (the citizens of Alabama), a common purpose (power and money), and a similar modus operandi.

Rosin: Evidence Contradicted Ineffective Assistance of Counsel Claim

In Rosin v. U.S., No. 14-10175 (May 14, 2015), the Court affirmed the denial of an evidentiary hearing to a defendant convicted of health care fraud who claimed in a § 2255 petition that his lawyers were ineffective for grossly underestimating the sentence Rosin would receive and failing to pursue a plea bargain. The Court noted that Rosin’s lawyers filed affidavits stating that he professed his innocence and insisted on going to trial. While testifying at trial, Rosin blamed others for his plight. At sentencing, Rosin did not accept personal responsibility for the conduct alleged. Thus, the record evidence contradicted Rosin’s claim that he would have accepted a guilty plea and not insisted on going to trial but for trial counsels’ alleged error.

Keelan: Restitution for Mental Health Treatment Expenses

In U.S. v. Keelan, No. 13-11878 (May 13, 2015), the Court affirmed an order of restitution for mental health treatment expenses imposed on a high school teacher convicted of unlawful enticement of a minor in sexual activity, in violation of 18 U.S.C. § 2422(b). The Court rejected the argument that the § 2422(b) violation was not a “crime of violence” for which restitution could be ordered. In cases involving sex crimes against minors “there is always a substantial risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.” The Court noted that the defendant failed to raise below the argument that there was no “bodily injury,” and therefore found no “plain error.” The Court rejected the argument that mental health treatment expenses were not subject to restitution, noting the statute’s reference to “psychological care.” Finally, the Court rejected the argument that the defendant’s conduct did not cause the mental health treatment, agreeing with the district court that there was “no doubt” they were.

Quartavious Davis: No expectation of privacy in cell tower location information

In U.S. v. Quartavious Davis, No. 12-12928 (May 5, 2015) (en banc) (9-2), the Court held that no Fourth Amendment violation occurred when a court order, authorized by the Stored Communications Act, 18 U.S.C. § 2703(d), compelled a telephone company to produce records containing cell tower location information related to Davis’ cell phone. The Court noted that the Supreme Court in U.S. v. Miller and Smith v. Maryland held that individuals have no reasonable expectation of privacy in bank records, or dialed telephone numbers, because these records are maintained by a third-party business. Analogizing to these cases, and relying on a recent Fifth Circuit case, the Court found that cell tower location information is held by a third-party, not by the individual, and the individual therefore has no reasonable expectation of privacy in these records. The Court noted that unlike U.S. v. Jones, the case did not involve any surreptitious physical intrusion on the defendant’s private property. The Court also noted that cell tower information is less informative than the GPS tracking at issue in Jones. The Court also noted that there was “no overhearing or recording of any conversations.” [Judge Pryor, concurring, stated: “If a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call.”] [Judges Jordan and Rosenbaum, separately concurring, noted concerns that more protection might be needed in the future as location information from cell phones become more precise.] [Judges Martin and Jill Pryor, dissenting, found the third-party doctrine inapposite, noting that if applicable, it would eliminate expectations of privacy in email accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.].

Preston: No habeas relief for 1978 murder

In Preston v. Sec., Fla. Dep’t of Corrections, No. 12-14706 (April 29, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder. The Court found that Preston was procedurally barred from raising his federal sufficiency of the evidence claim, because he failed to raise that claim before the Florida Supreme Court. The Court found that Preston merely claimed that the evidence was insufficient under Florida law, which has a different sufficiency standard than federal law. The Court added that the sufficiency claim would not have merit, because premeditated murder could be inferred from the victim’s brutal wounds, and other evidence.

Ford: Mail Fraud and Filing False Claims not Multiplicitous

In U.S. v. Ford, No. 14-10381 (April 28, 2015), the Court affirmed the convictions and sentence of a defendant charged with mail fraud, aggravated identity theft, and filing false tax refund claims with the Internal Revenue Service. The Court rejected Ford’s multiplicity challenge to the indictment, explaining that it was not multiplicitous to charge both mail fraud and filing false claims. The Court pointed out that mail fraud involved use of the mails, while filing false claims did not. Also, filing false claims involves an agency of the United States, while mail fraud does not. The Court rejected Ford’s argument that the admission of evidence of past conduct violated Rule 404(b). The Court explained that much the past conduct was “inextricably intertwined” with the charged offenses, and therefore fell outside the scope of Rule 404(b). Turning to sentencing, the Court rejected the argument that the enhancement for the number of victims did not apply. The Court noted that the limitation for aggravated identity theft offenses applied only to the “transfer, possession, or use of a means of identification” – not, as here, to the number of victims. In addition, the limitation did not apply to the mail fraud convictions of which Ford stood convicted, in addition to aggravated identity theft.

Creel: No mens rea required for "distribution" enhancement for child pornography

In U.S. v. Creel, No. 14-12438 (April 21, 2015), the Court held that the 2-level “distribution” enhancement of U.S.S.G. § 2G2.2(b)(3)(F) does not include a mens rea element, and affirmed the 84-month sentence imposed on a defendant convicted of receipt of child pornography. Creel objected to the “distribution” enhancement on the ground that he did not know that other users of the peer-to-peer file sharing program could access the child pornography that he had downloaded to his computer. The Court found that the plain language of the Guideline commentary did not require knowledge. The Court pointed out that the commentary defined “distribution to a minor” as “knowing” distribution. The Court found that the fact that one definition included a mens rea and the other definition did not implied that no mens rea was required in the other one. The Court cited like holdings of two other circuits, and acknowledged conflict with the holdings of four other Circuits.

Hill: Guideline commentary inconsistent with computer use guideline

In U.S. v. Hill, No. 14-13383 (April 17, 2015), the Court affirmed the imposition of the two-level enhancement for use of a computer to solicit a person to engage in unlawful sexual activity with a minor, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), holding that the Guideline commentary was inconsistent with the Guideline and therefore did not govern the application of the enhancement. Hill pled guilty to conspiracy to engage in sex trafficking of minors. The Guidelines provide for a two-level enhancement if a defendant used a computer to “solicit a person to engage in prohibited sexual conduct with a minor.” The Guideline commentary, however, states that the enhancement applies only to use of a computer to communicate with a minor or a person exercising custody of the minor. Here, Hill used a computer for online ads offering minor girls for sex. Joining other Circuits to have so held, the Court held that the Guideline commentary’s limitation was inconsistent with the Guideline, and therefore not binding. The Court noted that the inconsistency was the result of a drafting error. Because Hill used his cellphone (which qualified as a “computer”) to place online ads, and his actions therefore fell “squarely within the language of the enhancement.”

Conner: Georgia Death Row inmate not intellectually disabled

In Conner v. GDCP Warden, No. 13-13928 (April 15, 2015), the Court affirmed the denial of habeas relief to a Georgia death-row inmate who claimed that he was intellectual disabled and therefore not subject to the death penalty. The Court held that the district court did not err, after holding an evidentiary hearing, in finding that Conner was not intellectually disabled. The Court noted the district court’s finding that Conner’s IQ hovered around 80, and otherwise did not have the lack of intellectual functioning, or lack of adaptive skills, associated with the intellectually disabled. Turning to Conner’s ineffective assistance of counsel claim, the Court noted that Conner himself instructed his lawyer at the sentencing phase not to present mitigation evidence. The Court found no support for that he would have allowed trial counsel to present mitigation evidence, and his willingness to do so at postconviction proceedings did not, without more, suffice. During the guilt phase of Conner’s trial, the prosecutor told the jury that he had practiced criminal law for seven years, that as district attorney he had prosecuted nine murder cases, but he had never sought the death penalty until Conner’s case. Conner’s counsel objected, and the trial court gave a curative instruction. The Georgia Supreme Court found the remark improper, but did not compel reversal. The Court did not find this resolution of this issue contrary to well-established law.

Albury: Sufficient evidence to support probable cause independent of unlawful search

In U.S. v. Albury, No. 12-15183 (April 9, 2015), the Court affirmed drug trafficking convictions rejecting a Fourth Amendment challenge to the search of a hotel room. The Court acknowledged that a search warrant was based in part on a search that violated the Fourth Amendment. But the Court found that independent of the unlawful search, the affidavit contained sufficient evidence to support a finding of probable cause. Albury had resided in a room at the hotel, prior to moving to another room where the unlawful search occurred. Inside the vacated room, the police found cocaine powder residue, two cookies of crack cocaine and baggies with cocaine residue. This information provided probable cause to search the new room, and the testimony that the police supervisor would have sought a warrant to search this room even without the information from the unlawfully searched room showed a warrant would have been sought even without the unlawful entry. The Court also rejected Albury’s challenge to the sufficiency of the evidence, finding that he exercised control over both hotel rooms in which contraband was found. He was the only guest renting the rooms, and the only person whose personal effects were found inside.

Asante: Affirming Gun Trafficking and Exporting Enhancements

In U.S. v. Asante, No. 13-15651 (April 6, 2015), the Court affirmed the imposition of firearms sentence enhancements. The Court rejected Asante’s challenge to the four-level enhancement, under USSG § 2K2.1(b)(5), for a firearms offender “engaged in the trafficking of firearms,” claiming there was no evidence that he knew his conduct would result in another’s unlawful possession, use or disposal of the firearms. The Court acknowledged that the government failed to show that Asante knew that the firearm would be transferred to individual with prior convictions. But the enhancement applied on the alternative ground that the firearms would be transferred to a person who would use them unlawfully. The Court found this could be inferred from the fact that Asante knew the firearms would be hidden in cars that were being shipped to Jamaica. The Court also rejected Asante’s challenge to the imposition of a four-level enhancement, under USSG § 2K2.1(b)(6)(A), for exporting firearms. Again, the fact that Asante knew the guns would be smuggled to Jamaica supported this enhancement. The Court rejected the argument that the imposition of both enhancements constituted “double counting.” The Court noted that knowing a firearm will be transferred to someone for unlawful use, and for export, are conceptually distinct. Finally, the Court rejected the argument that the district court should have redacted information from the PSI about threats Asante made, in a phone conversation from jail to his wife, against the prosecutor and the magistrate judge. Even if the rules do not require this information to be contained in the PSI, the district court had discretion to include it.

Alexander: Affirming conviction for selling cutting machines to Iran companies

In U.S. v. Alexander, No. 14-10253 (April 7, 2015), the Court affirmed a conviction for conspiring to sell cutting machines to companies in Iran, in violation of the International Emergency Economic Powers Act, 50 U.S.C. § 1705. The Court found that the district court did not abuse its discretion in denying Alexander’s request to take the deposition of a witness whose proposed testimony was “immaterial or cumulative.” In addition, one profered statement would have hearsay. And the witness was a fugitive from justice. The Court also found that the district court did not abuse its discretion in denying a motion for a mistrial after a juror complained that supporters of the defendant momentarily blocked her car in the parking lot. No one communicated with the juror, and the district court instructed the jury that there was no certainty who the people were, or had anything to do with the trial. The jury affirmed that they could remain impartial. Finally, the district court did not error when it explained to the jury, during the testimony of a witness, the legal standard for conspiracy, because the district court was not commenting on the evidence but clarifying the law. The district court also did not err when it explained the limited purpose of admitting testimony – credibility of witnesses – about a “feud” between Alexander and his business partners.

Dimitrovski: One-time event can involve ongoing, sophistidcated operation

In U.S. v. Dimitrovski, No. 14-12417 (April 2, 1015), the Court affirmed the imposition of a two-level enhancement under USSG § 2B1.1(b)(14)(B), which applies “if the offense involved an organized scheme to steal or to receive . . . goods or chattels that are part of a cargo shipment.” Dimitrovski argued that the enhancement should not apply because it was intended for an ongoing, sophisticated operation analogous to a “chop shop,” not to a one-time event where a defendant attempts to resell stolen items. Rejecting the argument, the Court found an “organized, ongoing, and sophisticated operation. The defendant purchased a stolen cargo, loaded it onto one of his trailers, and in one day’s time had it shipped to Miami. He was a “savvy” businessman in negotiating the price over several days, and wore latex gloves to conceal his activities. Dimitrovski told the informant that he could bring more loads in the future. “An offense may involve an ongoing, sophisticated operation even if it is committed only once.”

Sosa: Defendants knew of government cooperator

In U.S. v. Sosa, No. 13-14141 (April 3, 2015), the Court rejected the argument of Medicare fraud defendants that their guilty pleas were not voluntary because the government did not disclose until sentencing that the government could have stopped the fraud, but instead allowed the loss to grow for months with the participation of a government cooperator. Had they known of the government’s inaction, the defendants would have contested the amount of forfeiture. Rejecting this argument, the Court found that the defendants “knew that the doctor involved in their four-month long conspiracy was a government cooperator.” Defendants also claimed that the plea agreement only agreed to forfeiture of two houses, not cars. The Court found that placed in context, the agreements did not state that the house-forfeiture would fully satisfy the money judgment.

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

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

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

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

Edmond: Vacating conviction where plea agreement based on unindicted crime

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

Hollis: Protective sweep justifies search

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

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

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

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

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

Melton: Youthful death penalty issues not "debatable"

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

Hernandez: Padilla applies even if after guilty plea

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

Everett: Request for DNA Sample is not "Interrogation"

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

Bailey: Child Pornography Possession Indictment Sufficient

In U.S. v. Bailey, No. 14-10174 (Feb. 24, 2015), the Court rejected a challenge to the clarity of an indictment that charged sexual exploitation of a child, and possession of child pornography. Noting that challenges to the sufficiency of an indictment are reviewed only for “actual prejudice,” when raised, as here, for the first time on appeal, the Court pointed out that Bailey knew precisely which of four video images were charged in the first four counts of the indictment. The Court also rejected a challenge to a count of the indictment that failed to identify the pornographic image at issue. The Court noted that the indictment identified the computer and videotapes on which he had child pornography. Thus, Bailey had “ample notice” of the images. The Court also rejected the argument that a violation of 18 U.S.C. § 2251(a) requires that a minor actually masturbate in the visual depiction, pointing out that this statute merely requires that the defendant “induce” or “entice” the minor; “it does not require the effort to be successful.”

Kopp: Venue for failing to register as sex offender also lies in state where travel began

In U.S. v. Kopp, No. 14-12408 (Feb. 18, 2015), the Court affirmed (1) the denial of a motion to dismiss an indictment for improper venue, and (2) the sentence imposed following the revocation of supervised release. Kopp moved from Georgia to Florida, where he failed to register as a sex offender. He was convicted of this offense in Georgia, where he preserved the argument that venue should have been in Florida, not in Georgia. Rejecting this argument, the Court pointed out that venue for this offense could be in “any district” where the crime was “begun, continued, or completed.” Here, Kopp began his crime in Georgia, because his interstate journey started there. The Court also affirmed the imposition of a six-month upward variance on Kopp’s sentence for subsequently violating his supervised release, pointing to Kopp’s “long and violent history of crime.”

Roberts: Affirming Convictions and Sentences in Medicare Fraud

In U.S. v. Roberts, No. 12-16056 (Feb. 17, 2015), the Court affirmed convictions and sentences arising out of a multi-million dollar Medicare fraud that involved using chronic substance abusers, elderly patients with dementia, Haitian patients seeking immigration benefits, and paid patients to obtain payments from Medicare for purported mental health services. The Court rejected a number of challenges to the convictions, including the argument that the prosecutor’s allusion in closing argument to the possibility that defense counsel were aware of their clients’ guilt. The Court noted that the district court sustained an objection to this statement and gave a curative instruction. Turning to sentencing, the Court affirmed the imposition of the “mass marketing” two-level sentence enhancement of U.S.S.G. § 2B1.1(b)(2)(A)(ii). The Court noted that recruiters repeatedly targeted new patient populations to bring them to their fraudulent clinic for treatment. The Court also affirmed the imposition of the “conscious or reckless risk of death or serious bodily injury” under U.S.S.G. § 2B1.1(b)(13)(A). The Court noted that the clinic admitted elderly patients with dementia even though the clinic was not equipped to meet these patients’ needs. The Court further affirmed the imposition of the “vulnerable victim” enhancement under U.S.S.G. § 3A1.1(b)(1). The Court noted that the victims included elderly patients and substance abusers, who were vulnerable because of their need for treatment. The Court affirmed the imposition of an upward variance based on the district court’s finding that one defendant’s criminal history of I understated the seriousness of his criminal history. Finally, the Court rejected a challenge to the $9 million restitution award, affirming the district court’s finding that the clinic did not render any proper services to Medicare that could offset the restitution amount.

Holt: Single conspiracy had a "common goal"

In U.S. v. Holt, No. 13-10453 (Jan. 30, 2015), the Court affirmed convictions and sentences of defendants charged with conspiracy to distribute oxycodone and cocaine. The Court rejected the defendants’ argument that evidence should be suppressed based on an unreasonable length of time elapsed between traffic stops and the deployment of drug dogs, finding that 27 minutes for one stop and only a few minutes for another was not unreasonable. The Court also found that the police had reasonable, articulable suspicions that Hold was engaged in drug trafficking. The Court rejected the argument that the trial court’s admission in evidence of pre-indictment narcotics distribution was a “constructive amendment” of the indictment. The Court noted that this evidence helped explain why one defendant helped the others distribute drugs, and not broaden the possible bases for conviction. The Court also rejected the argument that the government proved multiple conspiracies, not a single conspiracy, finding that the defendants “operated toward a common goal to distribute cocaine and oxycodone in South Florida and Boston," and involved “a significant overlap of participants.” The Court further noted that the defendants did not demonstrate “substantial prejudice” from any variance, as evidenced by the fact that the jury returned different verdicts as to different defendants. The Court found no error in the district court’s admission of expert testimony by a DEA agent regarding the meanings of coded language used by the defendants in intercepted communications. The Court noted that the testimony helped thejury interpret the meaning of words “more accurately than a lay person.” The Court found no abuse of discretion in the trial court’s denial of a mid-trial motion for a recess to prepare to testify and obtain witnesses. The trial had been going on for weeks, and the defendant had received multiple warnings to be ready to present her case. Further, the defendant had shown a lack of diligence in failing to subpoena witnesses.

Duperval: Affirming Foreign Corrupt Practices Act Conviction and 108 month sentence

In U.S. v. Duperval, No. 12-13009 (Feb. 9, 2015), the Court affirmed convictions and a 108-month sentence on a defendant convicted of receiving bribes in exchange for favors from his Haiti telecommunications company, Teleco. The Court found no abuse of discretion in the district court’s refusal to interview jurors individually about mid-trial publicity. The Court noted that the district court took actions to ensure the jurors were not exposed to publicity. The Court recognized that it would have been “preferable” to question a specific juror individually after she submitted a note about her awareness of corruption in Haiti, but this was not an abuse of discretion because the earlier media coverage was not related to the case. The Court rejected the argument that Teleco was not an “instrumentality” for purposes of the Foreign Corrupt Practices Act, pointing out that the government granted Teleco a monopoly over telecommunication services. The Court also rejected the argument that the jury should have been instructed to consider whether Duperval was merely performing a “routine governmental function,” noting that he was administering multi-million dollar contracts, which is not “routine.” The Court rejected the argument that the government interfered with a witness when it obtained a second declaration from this witness, finding that this witness merely “clarified” his earlier declaration. Turning to sentencing, the district court rejected the challenge to the application a two-level enhancement for a substantial part of a fraudulent scheme being committed from outside the United States. The Court noted that the relevant conduct for this offense related not to the money laundering that occurred only in the United States, but to the “underlying offense” of wire fraud. The Court further rejected the challenge to the “manager” enhancement, pointing out that Duperval managed another participant, and that there were five or more participants in the scheme. The Court rejected the challenge to the “obstruction of justice” enhancement, finding that Duperval “perjured himself” when he testified at trial. Finally, the Court found that the 108-month sentence was “substantively reasonable,” finding Duperval’s comparisons to other defendants to be “inapt.”

Estrada: Wantonly under Fla. St. 790.19 is not crime of violence

In U.S. v. Estrada, No. 14-10230 (Feb. 6, 2015), the Court, citing its recent decision in U.S. v. Estrella, 758 F.3d 1239 (11th Cir. 2014), held that the 16-level enhancement of U.S.S.G. § 2L1.2(b)(1)(A)(ii), for being convicted of illegal re-entry after committing a “crime of violence,” did not apply to a defendant with a prior conviction for violating Florida Statute § 790.19, where the Shepard documents did not indicate whether the prior crime involved a crime against the person or against property. The documents indicated that Estrada “wantonly or maliciously” threw a deadly missile at an occupied vehicle. Because “wantonly” refers to property and “maliciously” refers to a person, the Court accepted the government’s concession that the district court erred in concluding that this prior conviction was for a crime of violence offense. In light of the defendant’s concession in the trial court that the 8-level enhancement of § 2L1.2(b)(1)(C) applied, the Court remanded the case with an instruction that the district court impose this enhancement. However, the Court noted that at resentencing, “either party is free to advocate for a departure or variance.”

Rivers: Credibility of declarant, not witness, determines Rule 807 admissibility

In Rivers v. U.S., No. 12-15208 (Feb. 5, 2015), the Court agreed with the habeas petitioner that the district court erroneously admitted testimony under Fed. R. Evid. 807’s residual exception to the hearsay rule, but affirmed the denial of habeas relief because, even after excising the improperly admitted testimony, Rivers failed to prove his claims. At the habeas hearing, the district court admitted hearsay testimony by a co-defendant’s lawyer about a meeting where he had communicated with Rivers about plea agreements, contrary to Rivers’ claim that his lawyer failed to discuss this with him. The district court, over objection, admitted this testimony as having “circumstantial guarantees of trustworthiness.” The Court noted that the inquiry is not the trustworthiness of the witness reciting the hearsay statements in court, but of the declarant who originally made the statements. The Court found that statements made by an attorney to counsel for a codefendant are not inherently trustworthy simply because they are made by a lawyer during the course of representing a criminal defendant. The Court also noted the absence of corroborating evidence. The Court, however, found the error to be harmless, because Rivers’ story was not credible, in light of evidence that Rivers was aware of the evidence against him, and of the terms of a plea offer.

Barber: Driver had "apparent authority" over passenger's bag

In U.S. v. Barber, No. 13-14935 (Feb. 3, 2015), the Court held that a police search of a cover where officers discovered a gun in a bag placed in the passenger-side floorboard was valid, because the driver had “apparent authority” to consent to the search. Police stopped a vehicle in which Barber was a passenger. They arrested the driver, Robinson, for driving with a suspended licence. The driver consented to a search of the car. The police found a bag on the passenger-side floorboard, which contained a gun. The Court held that the passenger, Barber, had Fourth Amendment standing to challenge the search of his bag. “Not only was Barber present during the search of Robinson’s car, but the bag was at his feet when the officers stopped the car.” Barber had standing to contest the search of the bag even if he lacked standing to challenge the search of the car. Robinson had apparent authority to consent to the search of the bag. “The bag’s placement on the passenger-side floorboard, within easy reach of Robinson, coupled with Barber’s silence during the search, made it reasonable to believe that Robinson had common authority over the bag.” The Court noted that no one told the officer that the bag did not belong to Robinson.

Johnson: "Actively Pursued" merely requires leads already in police possession

In U.S. v. Johnson, No. 13-15583 (Feb. 2, 2015), the Court held that the inevitable discovery exception to the exclusionary rule applied when a police officer illegally discovered evidence that he would have discovered in a later inventory search. After pulling over Johnson and his vehicle, a police officer learned that Johnson’s driver’s licence was suspended. The officer learned that the vehicle’s owner was deceased. Thus, the officer had taken steps toward establishing that the vehicle needed to be impounded. The officer then searched the vehicle, illegally, and found a firearm. After arresting Johnson, the officer conducted an inventory search. The Court noted that, in order for the “inevitable discovery” exception to apply to the later inventory search, the government must establish that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct. The Court explained that “actively pursued” did not mean that the police had already planned the particular search that would obtain the evidence. Rather, the police would have discovered the evidence by virtue of ordinary investigations of evidence or leads already in their possession. The purpose of the requirement of active pursuit is to exclude evidence that was not being sought in any fashion. Here, the officer’s investigation had taken multiple steps toward establishing that the truck needed to be impounded, that is, that an inventory search would be necessary.

Sosa: Affirming Health Care Fraud Convictions and Sentences

In U.S. v. Sosa, No. 13-13171 (Feb. 2, 2015), the Court affirmed the convictions and sentences of defendants charged with health care fraud. The Court rejected all challenges to the sufficiency of the evidence, citing evidence that Sosa personally transported fake patients to the clinic in which he had invested, to purportedly obtain injections for which the clinic was reimbursed by Medicare. The Court also rejected the plain error challenges to the prosecutor’s vouching and other statements during closing argument, finding the statements, taken in context, not to create reversible error. The Court acknowledged that the prosecutor’s statement in closing argument that “I did my job” was error, but harmless in light of the evidence of guilt. Turning to the sentence, the Court affirmed the imposition of a “managerial role” enhancement, pointing to evidence that Sosa drove patients to the clinic. The Court also rejected Sosa’s challenge to the “sophisticated means” enhancement, finding that patients were paid in a “surreptitious manner,” and injected the patients with inexpensive products.

Howard: Defendant merely subject to "dead-docketed" indictment not "in custody" for habeas purposes

In Howard v. Warden, No. 13-12831 (Jan. 9, 2015), the Court held that a person subject, without more, to a Georgia “dead-docketed” indictment – a process by which prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court – is not “in custody” for habeas corpus purposes. The Court therefore affirmed the dismissal of Howard’s petition. Howard was subject since 1995 to a dead-docketed indictment for burglary. Evidence of this 1995 burglary was introduced at a 1997 trial for an unrelated offense, but it was never used to enhance any sentence. The record showed no relationship between the 1995 indictment and Howard’s current custody. Though recognizing that the caselaw broadly construed the term “in custody” for habeas purposes to include situations where a person is not in actual, physical custody, the Court found that Howard had not shown that he was subject to some type of restraint that was not shared by the general public. Consequently, the Court lacked jurisdiction to consider his habeas claims.

Reese: No Sixth Amendment Confrontation Right in Supervised Release Revocation Hearing

In U.S. v. Reese, No. 14-10257 (Jan. 5, 2015), the Court held, on plain error review, that the Sixth Amendment right to confrontation was not violated at a hearing to revoke supervised release when the results of a lab test were admitted through the testimony of a police officer instead of the lab technician who performed the test. The Court found that the Sixth Amendment applies only in “criminal prosecutions” which does not include parole revocation hearings – which the Court equated with supervised release revocation. The Court noted that eight other circuits have held that the Sixth Amendment does not apply in hearings for the revocation of supervised release, probation, or parole.

Smith: No mens rea element required for prior drug offenses

In U.S. v. Smith, No. 13-15227 (Dec. 22, 2014), the Court rejected the argument that, for prior criminal history sentence enhancement purposes, prior drug convictions should not count as “serious drug offenses” or “controlled substance offenses,” because the prior convictions did not contain the requisite mens rea element. The Court explained that neither the statutory definition of a “serious drug offense,” nor the Guideline definition of a “controlled substance offense” expressed or implied an element of mens rea. The Court declined to presume that mental culpability was a required element, because the definitions were “unambiguous.” The Court distinguished cases that involved different definitions.

Baldwin: Rejecting Sufficiency challenges

In U.S. v. Baldwin, No. 13-12973 (Dec. 17, 2014), the Court affirmed the convictions and sentences of defendants convicted of the unauthorized use of personal identifying information to obtain fraudulent tax refunds. The Court rejected a number of challenges to the sufficiency of the evidence, relying on evidence that the fraudulent returns were submitted from the defendant’s addresses, the fraudulent activity took place within their residences, and one defendant was captured on video making an ATM withdrawal from a card that had been loaded with the proceeds of fraudulent returns. The Court rejected the argument that a constructive amendment occurred when the district court instructed the jury that “scrivener’s errors” in the last digits of the account numbers explained a discrepancy between the number charged in the indictment and the evidence at trial. The Court recognized that it might have been erroneous to allow the jury to convict as long as it found that a defendant “had used any means of identification belonging to any person.” But here the indictment charged the defendant with using names, and those charges were proven at trial. Consequently, the district court did not allow a shift in theory regarding the essential elements of the crime. The Court also rejected challenges to the sentences, finding sufficient evidence that the amount of the loss was reasonably foreseeable. The Court also affirmed the restitution order, finding that a defendant “agreed fully to participate in the broader scheme, rather than to engage in only a small handful of withdrawals.” Finally, the Court rejected the argument that the U.S.S.G. § 2T guidelines, applicable to fraudulent tax returns, instead of the § 2B guidelines, applicable generally to fraud, should have applied. The Court noted that the offense involved more than filing fraudulent tax returns, but stealing identities.

Velazco: no evidentiary hearing on counsel's ineffectiveness

In Velazco v. Dep’t of Corrections, No. 13-12525 (Dec. 16, 2014), the Court affirmed the denial of an evidentiary hearing to a habeas petitioner who claimed that counsel was ineffective for failing to investigate two defense witnesses to the murder whose credibility was impeached at trial. The Court found that the Florida courts could have reasonably concluded that Velazco failed to establish prejudice regarding his trial counsel’s failure to investigate, because these two witnesses were, in fact, helpful to the defense, and because of the overwhelming evidence that defeated his defense of self-defense.

Wilson: Counsel not ineffective for failing to present mitigating evidence

In Wilson v. Warden, No. 14-10681 (Dec. 15, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1996 murder. The Court rejected the argument that trail counsel were ineffective because they failed to investigate his background and present mitigation evidence at sentencing. The Court found that Supreme Court of Georgia could have reasonably concluded that new evidence of Wilson’s background would not have changed the overall mix of evidence at his trial. For example, evidence that Wilson was more of a follower than a leader was contradicted that he had “risen to the rank of ‘God damn chief enforcer’” of a local gang.

Cruanes: Youth Offender Act required automatic set aside of prior conviction

In U.S. v. Cruanes, No. 13-15057 (Dec. 5, 2014), the Court issued a writ of mandamus ordering a district court to set aside a defendant’s conviction as of December 1, 1983. The Court noted that under the (then effective, now-repealed) Federal Youth Corrections Act, the conviction of a youth offender is “automatically set aside” when the offender is discharged by the Parole Commission or by the court. Here, Cruanes had been discharged in 1983, but the district court never issued a certificate setting aside his conviction. The Court noted that the district court erred in ruling only the Parole Commission was authorized to issue this certificate.

Brown: Upward variance supported by depraved online chats

In U.S. v. Brown, No. 13-13670 (Nov. 25, 2014), the Court affirmed a 240-month sentence for possession and receipt of child pornography. The Court recognized that as a result of an upward variance, the 240-month sentence was well above the applicable Guidelines range of 78 to 97 months. But Brown failed to show that the upward variance was unreasonable. The Court noted the district court’s reference to the self-evident danger to society posed by Brown, as demonstrated by his “depraved” online chats and interest in the abduction, sexual molestation, murder, and cannibalization of children.

McIlwain: Prior Commitment to mental institution satisfies 922(g)(4)

In U.S. v. McIlwain, No. 14-10735 (Nov. 25, 2014), the Court held that the defendant, prior to possession of a firearm, had been “committed to a mental institution” within the meaning of 18 U.S.C. § 922(g)(4), and therefore affirmed his conviction under this statute. The Court noted that McIlwain received a formal hearing before the state probate court, was represented by counsel, and the court heard sworn testimony and made substantive findngs of fact that it included in its formal order of commitment. The Court further noted that, just as a convicted felon could not mount a collateral attack on the validity of a prior state conviction under § 922(g)1), McIlwain was not allowed to mount a collateral attack on an underlying state order of commitment under § 922(g)(4).

Tanzi: Counsel not ineffective in failing to present evidence of XYY abnormality

In Tanzi v. Sec., Fla. Dep’t of Corrections, No. 13-12421 (Nov. 19, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a murder committed in 2000. The Court rejected the argument that counsel was ineffective in failing, among other things, to present evidence of Tanzi’s XYY abnormality. The Court noted that men with XYY chromosones tend to have diminished socialization skills, but do not automatically become antisocial. The Court also noted a defense mental expert’s testimony that knowledge that Tanzi had an extra & chromosome would not have changed any of the opinions he expressed during the penalty phase. Tanzi therefore failed to satisfy the prejudice prong of Strickland’s ineffective assistance of counsel standard.

Spencer: Misapplication of Career Offender Guideline is not cognizable under 2255.

In Spencer v. U.S., No. 10-10686 (Nov. 14, 2014), the Court (en banc) (5-4) held that a defendant cannot attack a misapplication of the career offender Guideline in a collateral attack on his sentence under 28 U.S.C. § 2255. The Court first noted that it had erroneously granted Spencer a certificate of appealability, because such a certificate may only issue if the applicant has made a “substantial showing of the denial of a constitutional right.” Here, there was no underlying constitutional issue. Nevertheless, the Court declined to vacate the certificate “at this late hour,” because the matter had been litigated before a panel and was now before the en banc Court. The Court warned that it would not be so lenient in the future. Turning to the merits, the Court noted that under § 2255, a district court lacks the authority to correct a claimed sentencing error unless the claimed error constitutes a “fundamental defect” which inherently results in a “complete miscarriage of justice.” The Court held that the Guideline error Spencer alleged did not qualify as a complete miscarriage of justice. The Court pointed out that Spencer’s sentence was below the statutory maximum sentence for his offense. The sentence was therefore “lawful.” Because the Guidelines are advisory, the district court could reimpose the same sentence on remand, and the error therefore cannot be a complete miscarriage of justice. The Court noted that even if Spencer’s sentence on direct appeal would be viewed as “substantively unreasonable” – the incorrect application of the career offender Guideline nearly doubled his Guideline range, from a range of 70-87 months to a range of 151-180 months – this would not qualify as a “complete miscarriage of justice” because the sentence was still below the statutory maximum. The Court declined to equate “legal innocence” of a prior qualifying conviction under the career offender Guideline with “factual innocence,” because Spencer still committed a “serious” prior crime: felony child abuse (at the age of 18, Spencer had sex with a 14-year old). The sentencing judge could still consider the seriousness of this conviction at resentencing. The Court distinguished cases where a prior conviction had been vacated, finding that this vacatur constitutes a "new fact" with which the petitioner can challenge his sentence. Spencer merely presented an argument of "legal innocence." (Martin, J,, dissenting noted that the ruling will increase costs in the criminal justice system to the extent that the U.S. taxpayer will have to spend dozens of thousands of dollars incarcerating Spencer for time he should not be in prison). (Jordan, J., dissenting, argued that the mistaken career offender designation was a complete miscarriage of justice, noting that the 81-month increase in Spencer's sentence is roughly the time needed to complete both college and law school).

Lucas: No requirement for affirmative instruction that jury unanimity is not required for mitigating factor

In Lucas v. Warden, No. 13-11909 (Nov. 12, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders. The Court rejected Lucas’ ineffective assistance of counsel claim, finding that counsel did not fail to develop expert testimony that Lucas’ intoxication on the day of the murders rendered his confession unreliable. The Court pointed out that Lucas professed and exhibited a memory of the murders during his videotaped confession. The Court also rejected the argument that counsel failed to present Lucas life history as mitigation, finding that quite the opposite counsel presented substantial testimony of family history. The Court also rejected Lucas’ Brady claim, agreeing with the Georgia state courts that the testimony of a witness would have been cumulative at best. The Court rejected the request for a new trial based on the prosecutor’s improper statement during cross-examination during the penalty phase that prison escapes happen “every day.” The Court noted that the defense witness challenged this statement, and that the statement was “far less egregious” than what said by prosecutors in other cases in which no prejudice was held to have occurred. The Court rejected the argument that the jury should have been instructed that mitigating factors need not be found unanimously. The Court recognized that it is error to instruct a jury that it must agree unanimously on mitigating factors. But it found no requirement that an affirmative instruction must be given when the trial court has not otherwise suggested that unanimity is mandatory.

Cole: Habeas petition untimely

In Cole v. Warden, Georgia State Prison, No. 13-12635 (Oct. 6, 2014), the Court held that a habeas petition was correctly dismissed for being untimely. Cole claimed that a habeas petition filed more than fifteen years after the limitations period had expired should be deemed timely, because he only discovered a violation at his guilty plea at this time. The Court noted that the written plea form Cole signed referred to the constitutional rights that Cole claimed were not mentioned at his plea colloquy. Cole failed to establish due diligence in discovering the violation. The Court also rejected Cole’s equitable tolling argument, again finding he failed to exercise reasonable diligence.

Winthrop-Redin: Allegations of death threats to plead guilty "incredible"

In Winthrop-Redin v. U.S., No. 13-10107 (Sept. 23, 2014), the Court affirmed the denial of 2255 relief to a defendant who pled guilty to possessing cocaine with intent to distribute, rejecting the claim that the defendant was coerced to plead guilty by death threats from other members of the crew of ths ship on which the cocaine was seized. The Court found that the claim that the plea was involuntary was based only on conclusory and incredible allegations, noting that the defendant at his plea colloquy said that he was not pressured, and waited more than two years after he pled guilty to say anything about alleged threats. Further, the defendant did not specifically allege that he told his attorney about the death threats.

Reed: Failure to investigate "incredible" witness not deficient

In Reed v. Sec., Fla. Dep’t of Corrections, No. 13-10900 (Sept. 24, 2014), the Court reversed a grant of habeas relief to a Florida inmate who claimed counsel was deficient in failing to investigate and call a witness at trial. The Court noted that the witness was unavailable around the time of trial. In addition, the witness, who had eight felony convictions, admitted he had memory problems. The State court had reasonable grounds for concluding that the witness was not credible. Further, the witness’ testimony would not have directly exculpated Reed. Finally, there was substantial remaining evidence implicating Reed.

Mathis: Search of 2011 cellphone valid even if based on 2004 calls

In U.S. v. Mathis, No. 13-13109 (Sept. 24, 2014), the Court affirmed convictions of enticing a minor to engage in sexual activity, and the 480-month sentence. The Court rejected the argument that the search of Mathis’ cellphone violated his Fourth Amendment rights because the affidavit submitted in support misleadingly claimed that one could recover information from a different cellphone in 2011 evidence of a crime committed in 2004. The affidavit noted that Mathis had maintained the same phone number since 2004, and that law enforcement reasonably believed that the cell phone would contain incriminating information. Alternatively, the Court found that the police relied in good faith on the search warrant. The Court also rejected the argument that a second search of the cellphone was invalid because it occurred eight months after the expiration of the warrant’s ten-day search period. The Court noted that a search conducted after a warrant’s expiration date does not necessarily require suppression. The Court rejected the argument that the Confrontation Clause was violated when the district court admitted in evidence a non-testifying victim’s text messages. The text messages were not statements to government officers, and were not made under circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial. Turning to sentencing, the Court rejected the argument that the U.S.S.G. § 2G2.1(b)(6) enhancement for an offense involving a computer did not apply because Mathis merely used a cellphone. Deciding an issue of first impression, the Court held that the electronic high speed data processing of a cellphone meets the definition of a computer. The Court also rejected Mathis’s argument that a prior Florida conviction for lewd or lascivious conduct with a minor did not qualify as the basis for a aggravating sentence enhancement, because the offense did not require actual touching. The court noted that 18 U.S.C. § 2251(e) merely requires a prior offense “relating to” sexual abuse of a minor.

Kirk: "Remaining in" burglaries qualify as ACCA predicates

In U.S. v. Kirk, No. 13-15103 (Sept. 16, 2014), the Court held that prior burglary offenses counted as violent felonies under the Armed Career Criminal Act (ACCA). The Court rejected the argument that because the Florida burglary statute criminalized merely “remaining in” a structure with the intent to burglarize, as distinct from “entering” the premises, it did not qualify as a “violent felony.” The Court cited contrary Supreme Court and Circuit precedent involving “remaining in” burglaries, involving the “same risks” of injury. The Court also rejected the argument that the prior convictions were not committed on occasions different from one another. “[T]he charging documents submitted by the government show that Kirk pled guilty to burglarizing seven different dwellings, located at seven different addresses and owned by seven different people, on or about separate dates.” Finally, the Court rejected the argument that the government failed to prove that it is unconstitutional for a federal statute to punish purely intrastate conduct like firearm and ammunition possession that “substantially affected” interstate commerce. The Court cited precedent holding that a “minimal nexus” of the firearm being manufactured outside the state satisfied the jurisdictional element of § 922(g), which in turn defeated a challenge to the statute’s constitutionality.

Samak: 2255 savings clause does not apply

In Samak v. Warden, FCC Coleman, No. 13-12161 (Sept. 10, 2014), the Court affirmed the denial of habeas relief, holding that the savings clause of 28 U.S.C. § 2255(e) did not authorize Samak to file a habeas petition under 28 U.S.C. § 2241. Samak claimed that the district court did not have authority to impose a life sentence without a jury recommendation for his violation of the Organized Crime Control Act (OCCA). The Court noted one requirement for the § 2255 savings clause to apply is that an argument be foreclosed by circuit precedent. Here, to the contrary, “binding Fifth Circuit precedent at the time of sentencing actually supported his claim that he should not have been sentenced to life imprisonment.”

Bates: Prayer did not prejudice trial

In Bates v. Sec., Fla. Dep’t of Corrections, No. 13-11882 (Sept. 5, 2014), the Court denied habeas relief to a Florida inmate sentenced to death for a 1982 murder. The Court rejected Bates’ claim that his trial counsel was ineffective for failing to object to an opening prayer, delivered in the presence of the jury, by a minister of the church where, trial testimony later showed, the victim’s funeral service was held. Bates claimed that this prayer urged the jury to improperly base its verdict on divine wisdom and guidance instead of the evidence adduced at trial. Rejecting this claim as speculative, the Court declined to fault trial counsel for failing to move for a mistrial. The Court also rejected the argument that the sentencing jury should have been informed of the defendant’s parole ineligibility. The Court noted that this is required only where the defendant is, as a matter of law, absolutely ineligible for parole, and the State places his future dangerousness at issue.

Green: No 3582(c)(2) sentence reduction for crack cocaine offender held accountable for 32.1 kilos

In U.S. v. Green, No. 12-12952 (Sept. 4, 2014), the Court affirmed the denial of a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) for a defendant convicted of crack cocaine trafficking. Green claimed he was eligible for a sentence reduction based on amendments to the crack cocaine Guidelines that took effect after his original sentencing. The district court denied relief because it found that at the original sentencing it had held Green accountable for a drug quantity in excess of 10 kilograms, and as much as 32.1 kilograms – quantities for which no reduction would apply under the amended Guidelines. The Court noted that since a § 3582(c)(2) resentencing is not de novo, a district court may not make any new finding inconsistent with a finding it made in the original sentence proceeding. Thus, here the district court properly clarified that it had held Green accountable for 32.1 kilograms of cocaine base. The Court also rejected Green’s reliance on a statement it had made about the drug quantity in an earlier appeal in his case. The Court found that it had merely assumed that a Guideline amendment lowered Green’s guideline range, he was still not entitled to a sentence reduction. But this assumption by the Court did not subsequently bind the district court.

Campbell: Not Credit for Overhead in Loss Amount Calculation

In U.S. v. Campbell, No. 12-11952 (Sept. 3, 2014), the Court affirmed the conviction and sentence of a defendant convicted of defrauding the State of Alabama of several million dollars through a fraudulent institute. The Court rejected the argument that the “loss amount” that was the basis for a sentence enhancement should have been reduced, based on the legitimate services his institute rendered to the State of Alabama. The Court found ample support in the record that the institute “was a sham organization which served no legitimate purpose.” The Court rejected Campbell’s argument that the government should have sifted through years of bank records and itemized every single transaction that should be chalked up as a loss to the victim. “When, as here, a defendant’s conduct was permeated with fraud, a district court does not err by treating the amount that was transferred from the victim to the fraudulent enterprise as the starting point for calculating the victim’s pecuniary harm.” The Court noted that the district court correctly granted a partial credit for legitimate services rendered by the institute. The Court added, however, that Campbell was not entitled to a credit for the operating expenses of the institute, because many of these expenditures played some role in perpetuating the scheme.

Godwin: No error in dismissal of jurors

In U.S. v. Godwin, No. 13-10184 (Sept. 3, 2014), the Court affirmed convictions for RICO racketeering and RICO conspiracy, in violation of 18 U.S.C. §§ 1962(c) & (d). The Court rejected the argument that the district court, before the trial commenced, erroneously dismissed a juror who had been selected to serve on the jury. The Court noted that the juror was visibly distraught about having to serve on a four and half-week trial away from her 14-month old son. The Court also rejected the argument that the district court, during jury deliberations, erroneously dismissed a juror who, according to all other jurors, was refusing to follow the judge’s instructions. The Court noted that this was a proper ground for dismissal, so long as there was no substantial possibility, as here, that the juror was basing her decision on the sufficiency of the evidence. The Court also rejected one defendant’s challenge to the sufficiency of the evidence, pointing out that his sale of a diamond stolen during a home invasion was “money laundering,” because it was designed to promote the ultimate objective of the conspiracy – to turn jewelry into cash. Although the defendant “was not a bona fide, dog-tag wearing member of the organization,” he helped the gang commit various crimes.