Ronda: Corrupt Police Officer Convictions Affirmed

In U.S. v. Ronda, No. 03-15640 (July 13, 2006), the Court (Tjoflat, Hull & Restani b.d.) affirmed the convictions and sentences of former Miami policemen involved in the fabrication of evidence to make police shootngs appear justified, by planting guns at the scenes of the shootings and/or making false statements to investigators.
Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), the Court rejected the argument that there was no federal nexus for their obstruction of justice convictions, because they lied to state, not federal, investigators. It suffices that it was "likely" that the misleading information would be transferred to a federal agent. Here, it was likely that such a federal investigation would occur. The Court distinguished Arthur Andersen v. U.S., 544 U.S. 696 (2005), as involving a different obstruction statute which referenced "an official proceeding," language not included in the statute defendants were charged with violating.
The Court rejected the argument that the jury should have been instructed about Florida’s fleeing felon statute, which authorizes police to shoot at fleeing felons in certain circumstances. The Court noted that the statute itself was introduced into evidence. Further, since the defendants still violated the law by obstructing investigations into the shootings, the justification for the shootings themselves under the fleeing felon statute had no legal impact on the elements of the obstruction offense.
The Court rejected the argument that there was no single over-arching conspiracy, finding "overwhelming" evidence to the contrary.
The Court rejected defendant Gonzalez’ argument that the evidence of perjury was insufficient. Contrary to Gonzalez’ claim that he had merely testified that he was uncertain about whether victims of police shootings had a gun, the transcript shows that Gonzalez said he believed they had a gun.
The Court affirmed the denial of a mistrial based on extrinsic evidence that one juror allegedly gave the jury during deliberations, based on watching tv reports of the trial. Further, though another juror’s home was burglarized during the trial, the trial court instructed the jury that this was in no way related to the trial. The trial court interviewed these jurors separately, and wisely chose to dismiss them.
Turning to the sentences, the Court found no Booker plain error, because the defendants did not show any comments by the district court that the sentences were too severe.

Hamaker: Bank Fraud Conviction Upheld

In U.S. v. Hamaker, No. 03-12554 (11th Cir. 2006), the Court affirmed bank fraud convictions, and, on a government cross-appeal, reversed the sentence based on the district court’s erroneous calculation of the "loss" amount. The bank fraud arose out of defendant’s billing a bank for construction work that they did on the personal property of the bank’s CEO.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.

Martinelli: Money-laundering instruction need no specify fraud elements

In U.S. v. Martinelli, No. 04-13977 (July 10, 2006) (Dubina, Marcus, Cox), the Court upheld the money-laundering conviction of a defendant, arising out of a scheme to defraud small businesses, by persuading them to pay a fee for finding a buyer of the business, when, in reality, no such service was provided.
The Court rejected Martinelli’s challenge to the search of the business premises. The Court noted that although the affidavit upon which a search warrant was granted did not list the specific names of the complainant small businesses police contacted, "those people and entities were neither anonymous nor confidential." Each victim had personal knowledge of the crime. Moreover, there was a "high level of corroboration," with each complainant reporting that they paid money for the same purpose and never received services. Thus, there was a "fair probability" that contraband would be found at the business locations and the warrants were supported by probable cause.
The Court also rejected the argument that the warrant was overbroad in permitting seizure of "all" company files, noting that such a broad seizure was warranted when there were allegations of a pervasive scheme to defraud.
Reviewing the issue for "plain error," the Court rejected the argument that the money laundering jury instructions were erroneous in failing to instruct regarding the elements of mail fraud. The Court noted that Martinelli was charged with money laundering, not mail fraud. The government did not have to prove the elements of mail fraud, only that Martinelli knew that the funds he laundered "were derived from the specified unlawful activity of mail fraud." The Court further noted that it had found no plain error in like circumstances in U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). [Note: Cox, J., concurring, stated that he thought Silvestri was wrongly decided, because a jury could not find that a defendant knew the proceeds were derived from mail fraud without being instructed on what "mail fraud" involved].
The Court also rejected the argument that the jury should have been instructed on the "materiality" element of mail fraud. The Court noted that Martinelli himself need not have committed a mail fraud offense in order to be guilty of money laundering. Further, the district court, though not specifically defining materiality, told the jury that the specified unlawful activity was a scheme to defraud. Finally, Martinelli’s misreprensentations "were anything but immaterial."
The Court agreed with Martinelli that the district court should have given his requested "good faith" defense jury instruction. However, based on the instruction regarding whether Martinelli knew the proceeds were from a scheme to defraud, and on the "knowingly" element of the offense, that the jury had to find that the act "was done voluntarily and intentionally and not because of accident or mistake," the jury had to rule out the possibility that Martinelli actually harbored a good-faith belief in the legitimacy of the business before it could have found that he knew the money represented proceeds of mail fraud. Finally, the failure to give a good faith instruction did not impair Martinelli’s ability to present a defense, having argued good faith to the jury in closing argument.
The Court also rejected Martinelli’s challenge to the failure to instruct the jury that mere "puffing" or mere carrying on normal business expenses, did not constitute fraud, or money laundering. The Court found that the misrpresentations went beyond mere "puffing," and that the instructions sufficiently excluded the possibility of convicting based on legitimate non-fraudulent expenses.
Turning to the sentence, the Court found Booker error and remanded for resentencing.

Martin: 7-day sentence too low for HealthSouth defrauder

In U.S. v. Martin, No. 05-16645 (July 11, 2006), on a government appeal of a sentence for a defendant convicted in the HealthSouth fraud, the Court vacated the sentence and remanded for resentencing.
After a first sentencing at which the district court imposed no imprisonment and only probation, and after a first remand after appeal based on the district court’s failure to explain its reasons for its significant downward departure, at resentencing the district court imposed just a seven-day sentence, noting the defendant’s substantial cooperation with the government in the prosecution of others involved in the fraud. The government appealed, arguing that, although the defendant should get a sentence reduction for cooperation, the sentence was too low in relation to his guideline range of 108-135 months.
Citing U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006), in which the Court vacated the lenient sentence imposed by the same district court on another executive involved in the HeathSouth fraud, the Court noted that a light sentence for such a massive fraud was not easily reconciliable with the § 3553(a) factors. Here, the district court made a 23-level downward departure. Even Martin’s extremely valuable cooperation was "not a get-out-of-jail-free card." Further, the district court erred by taking into account the "injury" to Martin resulting from his exposure to civil liability for his fraud, a liability which resulted not from his cooperation but from his misconduct. A seven-day sentence is "shockingly short." It failed to serve the purposes of § 3553(a), in failing to reflect the seriousness of the conduct, and to afford adequate deterrence (which the Court found particularly important in the context of white-collar crime). Further, though the district court cited the lack of jail time of the lead defendant, Richard Scrushy, he was not a "valid comparator" because he was acquitted on all counts. Finally, the Court ordered the case reassigned to another district judge, noting its prior reversals of the judge in this and related cases.

Castro: Fast Track Program Not Unreasonable

In U.S. v. Castro, No. 05-16405 (July 12, 2006), the Court rejected a defendant’s challenge to his sentence for illegal reentry, finding no error in the refusal to grant him a downward departure based on the fact that some districts in the United States have a fast-track program that results in sentencing disparities.
Pointing out that some districts, but not his in the Northern District of Georgia, have a fast track program that allows defendants to plead guilty faster and receive a reduced sentence, Castro sought a lesser sentence on this basis, pointing to the disparities it creates among districts. The Court rejected this argument. The Court found that the sentence was consistent with the Guidelines. Further, any disparity created by the fast-track program was not within the scope of § 3553(a)(6), which instructs courts to avoid sentencing disparities. By allowing the fast-track program only in some districts Congress "implicitly determined that the disparity was warranted." In so holding, the Court joined every circuit to have considered the issue.
The Court rejected, on plain error review, an equal protection challenge to the fast track disparity. In the absence of precedent on point from the Supreme Court or the Eleventh Circuit, any error could not be "plain."

Nunez: Reasonable Suspicion to stop car exiting suspected grow house

In U.S. v. Nunez, No. 04-14995 (July 11, 2006), the Court reversed the district court’s grant of suppression of evidence, finding that "reasonable suspicion" supported the police’s stop of a vehicle found to contain marijuana.
A police officer was conducting surveillance of a residence in Cape Coral, Florida, believed to be a marijuana grow house. He was told that a search warrant had been obtained for this residence, to search for marijuana. The officer observed Nunez carry a black garbage bag from the residence into a vehicle parked outside the residence. Later, the truck drove away. The officer stopped it, and smelled cannabis. The black garbage back contained 7.4 pounds of marijuana.
The officer had reasonable suspicion for the stop, the Court held, noting that the officer had reason to believe the bag, coming from a suspected marijuana grow house, which was under surveillance, contained marijuana or related contraband.

Poyato: Safety Valve Findings by Judge, not Jury

In U.S. v. Poyato, No. 05-13135 (July 10, 2006), the Court held that a jury’s acquittal on the court of being a felon in possession of a firearm did not affect a sentencing court determination whether a defendant is eligible for a safety valve sentence reduction below the mandatory minimum.
The defendant’s drug trafficking convictions subjected him to a minimum mandatory sentence of 36 months. The defendant would have been eligible for a safety valve sentence reduction below this minimum if, inter alia, he did not possess a firearm in connection with the offense. The district court stated that if it were the fact-finder, it would find that the defendant failed to satisfy this condition because it concluded by a preponderance of the evidence that the defendant possessed a firearm in connection with his drug trafficking. However, the court felt precluded, post-Booker, from making this finding because the jury had acquitted the defendant of the firearm count.
Reversing, the Court stated that the safety valve statute instructs the district court to make the relevant findings, and Booker did not affect this. Further, the safety valve involves sentencing below a minimum, not sentencing above a maximum, and therefore did not trigger the Apprendi principle. Finally, the safety valve statute instruction to sentence pursuant to the Guidelines did not trigger a maximum sentence, but an advisory sentence.

Crisp: Restitution alone not valid reason for 5 hr. sentence

In U.S. v. Crisp, No. 05-12304 (July 7, 2006), on a government appeal, the Court held that the district court erred when, in imposing sentence on a fraud defendant and in taking account of the defendant’s substantial assistance, the sentencing court imposed a sentence of five hours’ incarceration and probation.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.

Stickle: Venue in Southern District of Florida ok

In U.S. v. Stickle, No. 05-12077 (July 6, 2006), the Court rejected the arguments of the owner of a transportation company who was convicted of polluting international waters, after it dumped wheat contamined from oil into the Indian Ocean.
The defendant claimed that he was improperly charged with violating 33 C.F.R. § 151.10(a), which criminalizes dumping by a "ship other than an oil tanker." The ship in question was originally an oil tanker, but was later certified, inspected and approved for use as a freight vessel. The Court concluded that the indictment was therefore proper, noting that the approval forms the ship obtained clearly referred to use as a freight vessel, not an oil tanker.
The Court also rejected the argument that venue should have proved beyond a reasonable doubt, adhering to its caselaw which provides that matters that are not elements of the crime should be proved beyond a reasonable doubt.
The Court rejected the argument that venue did not exist in the Southern District of Florida for the conspiracy count, when the locus delicit was the Indian Ocean, and the only act committed in Florida was a co-conspirator’s lie in response to a question from a law enforcement agent investigating the offense. The Court held that "the jury reasonably concluded that the false statement impeded the inviestigation." [Query: What about the caselaw which holds that there is a distinction between a conspiracy and subsequent acts of concealment, e.g. Grunewald v. U.S., 353 U.S. 391 (1959)?].
The Court also rejected the argument that there was no venue in the Southern District of Florida for the substantive illegal discharge offense. The Court noted that because the offense occurred on the high seas, the last known residence of one of the offenders governed venue, and here one offender lived in the Southern District of Florida.

Tamari: Search of Arriving Vehicle Ok

In U.S. v. Tamari, No. 05-10618 (July 6, 2006), the Court rejected a defendant’s Fourth Amendment challenge to a search of his vehicle.
Law enforcement agents obtained a search warrant to search a rural property in Southwest Miami. The warrant authorized search of vehicles "on the property." While the search of the property was underway, the defendant appeared on the property, behind the wheel of a Hummer. After evasive answers and a failure to produce identification and the vehicle’s registration, the police searched his vehicle. It ultimately found evidence connecting Tamari to a drug trafficking conspiracy, for which he was convicted by a jury.
The Court rejected the argument that the warrant to search vehicles "on the property" did not authorize a search of a vehicle which was driven onto the property during the search, citing U.S. v. Alva, 885 F.2d 250 (5th Cir. 1989), which "passed on [this] precise question," and so also so held.
The Court stated that, in the alternative, the automobile exception applied, because the circumstances presented probable cause to search Tamari’s vehicle. The agents were searching a property which they believed was part of a large-scale drug conspiracy. They had already seized cocaine, cash and firearms on the premises when Tamari arrived in his vehicle. He gave evasive answers and was unable to produce identification or the vehicle’s registration.
Moreover, once a canine alerted to the vehicle this alone gave the agents probable cause for their search.

Estupinan: MDLEA is Constitutional

In U.S. v. Estupinan, No. 05-16279 (June 28, 2006), the Court rejected the argument that Congress exceeded its authority under the Piracies and Felonies Clause of Article I of the Constitution when it adotped the 46 U.S.C. app. § 1903, the Maritime Drug Law Enforcement Act (MDLEA).
The Court stated that inasmuch as the trafficking of narcotics is condemned universally by law-abiding nations, it was not fundamentally unfair for Congress to provide for the punishment of persons apprehended with narcotics on the high seas.

Norris: Legal Orchids Are Part of Sentence

In U.S. v. Norris, No. 04-15487 (June 23, 2006), the Court affirmed a sentence imposed on an offender convicted of importing orchid species from Peru into the United States in violation of CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora).
The defendant claimed that the market value assigned to the orchids was erroneous, because it was on the market value of the orchid shipments in their entirety, rather than on the market value of the orchids that had been undocumented in the the CITES permits accompanying each shipment. Rejecting this argument, the Court noted that the defendant tried to avoid customs’ detection of the undocumented orchids by mixing them in the same shipment with large quantities of documented orchids. "[T]he legally imported orchids were an integral part of the conspiracy." Consequently, the legal orchids were part of the "relevant conduct," and was appropriately considered in setting sentence.

Mitsven: Supervised Release required for probation revocation

In U.S. v. Mitsven, No. 05-12647 (June 22, 2006), the Court held that, on revocation of probation, a district court was required to impose a three-year term of supervised release.
The Court noted that the probation revocation statute instructs sentencing courts to resentence a defendant under Subchapter A of the sentencing laws. Subchapter A in turn instructs to impose a term of imprisonment under Subchapter D. 18 U.S.C. § 3583(a), which is part of Subchapter D, instructs that supervised release must be imposed if the statute of conviction so requires. Mitsen’s original statute of conviction, 21 U.S.C. § 841(b)(1)(C), provides that a three year term of supervised release must be imposed if the defendant is sentenced to a term of incarceration. Since the revocation sentence included a four-month term of incarceration, supervised release was required.

Wilk: Six Months Before Trial Is Reasonable Death Notice

In U.S. v. Wilk, No. 05-12694 (June 20, 2006), the Court, on a defendant’s interlocutory appeal which claimed that the government’s notice of intent to seek the death penalty was not given with a "reasonable time before trial," as required by 18 U.S.C. § 3593(a), held that the Death Notice filed six months before the trial was reasonable notice.
The Court noted that, from the start, the parties knew this was a likely death penalty case, and Wilk’s counsel began to prepare a death defense months before the Death Notice was filed. Further, the six month period between the Death Notice and the trial was itself objectively reasonable. The Court noted that the date of trial, for purposes of § 3593(a), is the actual date of the trial, not the originally scheduled date. The Court noted that continuances of trial did not change its analysis. Moreover, six months sufficed for the defense Wilk intended to present at trial.

Schwab: Public Defender Conflict Not Prejudicial

In Schwab v. Crosby, No. 05-14253 (June 15, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1991 murder.
The Court rejected Schwab’s ineffective assistance of counsel claim based on the fact that his lawyer, a public defender, declined to cross-examine fellow lawyers from the public defender’s office who were called to the stand to testify about the chain of custody of an incriminating letter Schwab sent to the public defender’s office. The Court noted that no prejudice arose because the testimony was about uncontested aspects of the chain of custody.
The Court also rejected the argument that Schwab’s counsel was presumptively prejudiced by the conflict of interest of the public defender’s office. The Court noted the deferrence provisions of AEDPA, as well as the Teague limitation on retroactivity of Supreme Court cases in habeas. The Court found that no Supreme Court had clearly held that prejudice would be presumed in Schwab’s case, that is, outside the multiple representation context, and therefore rejected the presumed prejudice argument.
The Court also found harmless any error in the Florida trial court’s description of the evidence in mitigation, noting that the "horrendous facts" of the case (the defendant sexually assaulted the victim before strangling him to death) indicated that any error was outweighed by the aggravating factors.

McGuiness: Obstruction of Justice in Escape

In U.S. v. McGuiness, No. 05-10797 (June 15, 2006), the Court affirmed the imposition a two-level obstruction of justice sentence enhancement on a defendant convicted of escape.
While a federal fugitive, McGuiness was approached by officers at a restaurant. McGuiness presented a false i.d. and claimed he was staying at nearby Holiday Inn. Police released him when his false name did not turn up on their database. Several hours later, when police realized no one by the assumed name was staying at the Holiday Inn, police, using a tracking dog and helicopter, after 24 hours, found the defendant hiding in woods near his hotel.
At sentencing, the district court imposed a two-level sentence enhancement for obstruction of justice, based on USSG § 3C1.1, cmt. n.4, which provides that this enhancement applies when a defendant provides a materially false statement to a law enforcement officer that significantly impeded the investigation. The Court affirmed this finding, noting that the use of a police dog and helicopter would not have been necessary had the defendant been truthful about his identity when first approached.
The Court rejected McGuiness’ argument that an obstruction enhancement should not apply to an escape offense, because conduct to elude capture is inherent in the continuing offense of escape. The Court noted that the Guidelines exclude some offenses from the obstruction enhacement’s application; however, escape was not one of the excluded offenses. Moreover, use of false identification makes it more difficult for law enforcement to locate an escapee.
The Court rejected the defendant’s argument that he should not have been ordered to pay a $4,000 fine, because of his inability to pay. The Court cited the defendant’s own statement that he had hidden cash away before commencing his prison term.

Bascomb: Bound by Appeal Waiver

In U.S. v. Bascomb, No. 05-13932 (June 14, 2006), the Court dismissed a defendant’s appeal because he agreed in his plea agreement to an appeal waiver.
At sentencing, the district court expressed reservations about the harshness of imposing a mandatory 120-month minimum sentence on a defendant convicted of cultivating marihuana at his home. The defendant sought to raise this point on appeal. The Court held that, notwithstanding the district court’s comments, the defendant remained bound by the written terms of his plea agreement.

Johnson: Sentence within statutory limits not disproportionate

In U.S. v. Johnson, No. 05-14889 (June 13, 2006), the Court affirmed a 140-month sentence for a defendant convicted of several counts of producing and distributing child pornography.
One victim, whom the defendant photographed, testified that sexual activity with the defendant started at age 8 and continued for six years.
The Court rejected Johnson’s argument that his sentence was disproportionate and therefore unconstitutional under the Eighth Amendment. Although Johnson had not raised this argument in the court below, the Court applied de novo, instead of plain error review, because the district court did not give Johnson an opportunity to object to his sentence.
The Court asserted that a sentence within the statutory limits generally does not violate the Eighth Amendment. Here, each count of conviction carried a statutory maximum punishment of 50 or 40 years. Hence the 140-month sentence was within the statutory limits. Johnson therefore failed to make a threshold showing of disproportionality.

Dowd: 305-sentence affirmed for 65 year old felon

In U.S. v. Dowd, No. 05-15067 (June 13, 2006), the Court affirmed a 305-month sentence on a defendant convicted of robbing a postmater and placing his life in jeopardy, in violation of 18 U.S.C. § 2114(a), use of a firearm in the commission of a crime of violence, in violation of § 924(c), unlawful conversion of money orders, in violation of § 500, and felony possession of a firearm, in violation of § 922(g)(1).
The Court rejected Dowd’s argument that the felon in possession count should have severed from his trial for the robbery of the post office, because the possession predated the robbery by several days. The Court noted that no compelling prejudice arose from the joinder, because the jury would have heard all of the firearms-related evidence anyway, because it contradicted Dowd’s primary defense that he used only a toy gun in the robbery. Moreover, the proof of Dowd’s guilt in the robbery was extensive and overwhelming.
The Court also rejected Dowd’s challenge to the admission of his confession. Although Dowd did not sign the Miranda waiver, he signed the portion of the form expressing that he understood his Miranda rights and he thereafter expressed his willingness to speak to investigators. Dowd did not even equivocally suggest that he wished to cease questioning.
The Court rejected Dowd’s Double Jeopardy challenge to being punished twice for use of a firearm, once for the robbery at gunpoint of the post office, and again for use of a firearm. The Court noted that Congress specifically intended consecutive punishment in this instance. Even though the offenses involve the same elements, this did not change the Double Jeopardy analysis because there was clear legislative intent to impose cumulative punishments.
The Court rejected Dowd’challenge to his sentence under the Armed Career Criminal Act. The district court relied on the transcripts of plea colloquys in Dowd’ prior State convictions as the basis for concluding that his prior burglaries qualified as predicate violent felonies under ACCA. This was in keeping with Shepard v. U.S., 544 U.S. 12 (2005).
The Court also found no error in the substitution of judges after trial, for sentencing, pointing out that the sentencing judge was sufficiently familiar with Dowd’s trial to sentence him.
Finally, the Court rejected Dowd’s reasonableness challenge to his 305-month sentence. "While it is true that Dowd is over 65 years old, it is also undeniable that Dowd committed a violent felony at that age."

Atwater: Counsel did not preseve Batson Claim for Habeas

In Atwater v. Crosby, No 03-16259 (June 12, 2006), the Court denied habeas relief to a Florida inmate sentenced to death for a 1989 murder.
The Court recognized that the Florida Supreme Court incorrectly applied Batson v. Kentucky when it concluded that there was no error in the striking of the sole black juror on the venire. However, given the great deference owed to the Florida courts, and defense counsel’s failure in the Florida state trial court to present evidence of how similarly situated white jurors had been treated differently by the prosecution, the Court concluded that the error was not unreasonable, and therefore unworthy of habeas relief.
The Court also found no grounds for habeas relief in the Florida Supreme Court’s conclusion that Atwater’s counsel was not ineffective in seeking to spare Atwater’s life on the ground that he was guilty of second-degree murder only. The Court noted that this was a plausible defense strategy in light of the overwhelming evidence of guilt.
The Court found that Atwater had defaulted his claim that counsel was ineffective for failing to allow him to testify, and that, in any event, Atwater was not prejudiced by his failure to testify in light of the overwhelming proof of guilt.
The Court also found no error in the denial of an evidentiary hearing on Atwater’s claim that counsel was ineffective in failing to put on mitigation evidence at the penalty phase. The Court noted that this was virtually the same evidence, through other witnesses, as the evidence which was presented.