Schwartz: Affidavit Admission Was Bruton Error

In U.S. v. Schwartz, No. 05-11715 (Sept. 5, 2008), the Court reversed a $30 million fraud conviction because the admission of one defendant’s incriminatory affidavit incriminated his co-defendant, in violation of Bruton v. U.S., 391 U.S. 123 (1968).
During its case in chief, the prosecution introduced in evidence a defendant’s affidavit which set forth the name of a corporation that was using investor monies to line the personal business coffers of the persons who controlled it. Then, in closing argument, the prosecutor expressly linked a co-defendant to this corporation, as the person who controlled the corporation.
The Court found that even if the affidavit itself was insufficient to compel an incriminatory inference against the co-defendant, the prosecutor’s closing statement made the inference inevitable – and therefore "devastating." Hence, a Bruton error occurred. Moreover, the error was not harmless because the affidavit and the closing argument, though repetitive of other testimony, summarized points contained in disparate parts of a lengthy trial, and had "singular credibility," coming as it did from an alleged participant in the fraud. The Court vacated this conviction.
As to another defendant, the Court rejected the argument that the government violated his use immunity agreement by using statements in the grand jury that the defendant gave to a law enforcement agent, to obtain his indictment. The Court noted that the use immunity agreement contained a "Kastigar waiver." A Kastigar waiver means that the defendant waived his right to challenge use of his statements before a grand jury because they were obtained in violation of the Fifth Amendment. The Court inferred that by waiving the Kastigar remedy the defendant meant to waive challenges to the use of his statements before the grand jury.
The Court rejected the sufficiency of the evidence challenge of two other defendants. The Court found that the evidence showed that they knowingly participated in fraud conspiracy.

Moore: Career Offenders Not Eligible for Crack Amendment Reduction

In U.S. v. Moore, No. 08-11230 (Sept. 5, 2008), the Court ruled that career offenders are not eligible for a sentence reduction under the recent retroactive amendment to the crack quantity Guideline.
The Court noted that 18 U.S.C. § 3582(c)(2) only authorizes a sentence reduction if a defendant’s sentence is "based on a sentencing range that has subsequently been lowered." The Court ruled that this "plain language" made career offenders ineligible for a crack amendment sentence reduction. The Court explained that career offenders sentences are "based on the guideline ranges applied to career offenders under § 4B1.1." Thus the crack quantity amendments, which affected § 2D1.1, "played no role" in the calculation of career offender sentences. The Court noted that USSG § 1B1.1 "further support[ed]" this interpretation, because it provided that a retroactive amendment does not apply when it does not have the effect of lowering the a defendant’s sentence. The Court distinguished other cases in which career offenders did get the benefit of the retroactive amendment, noting that the original sentences in these cases were not based on the career offender guidelines. [Note: In relying on USSG § 1B1.1, the Court did not address whether the Guidelines are advisory in § 3582(c)(2) proceedings].

Gonzalez: No basis for $250,000 fine

In U.S. v. Gonzalez, No. 06-15365 (Sept. 2, 2008), the Court reversed the imposition of a $250,000 fine on a defendant convicted of fraud.
The Court noted that the PSI concluded that the defendant lacked the ability to pay a fine. The district court at sentencing stated without explanation that Gonzalez was able to pay a fine, and imposed a $250,000 fine. This fine was three times the maximum provided by the Guidelines. The defendant objected.
Because the record provided no explanation regarding the basis for the fine, the Court vacated the sentence and remanded for resentencing.

Williams: Intent to distribute is not actual distribution

In U.S. v. Williams, No. 07-11707 (Aug. 29, 2008), the Court upheld a jury instruction that instructed the jury that it could take into consideration the defendant’s flight – Williams, when pursued by police, drove his car up to 90 miles per hour before eventually crashing into a metal pole – in determining guilt or innocence of his drug trafficking charge. The Court rejected the argument that the flight reflected nothing more than a generalized consciousness of guilt related to outstanding warrants, rather than guilt about the drugs found in his car.
Turning to the sentence, the Court reversed the imposition of a lifetime ban on receiving federal benefits. The Court noted that 21 U.S.C. § 862 only provides for a lifetime ban if the defendant is convicted of "distribution" of controlled substances. Williams was convicted under 21 U.S.C. § 841 of possession with intent to distribute. The Court concluded that possession with intent to distribute is not actual distribution. Moreover, "if there is ambiguity," the court was obliged to favor a lenient interpretation.

Johnson: Appeal Waiver of 90-day deadline valid

In U.S. v. Johnson, No. 08-10029 (Aug. 28, 2008), the Court held that the defendant, in his appeal waiver, waived his right to challenge an order requiring him to pay $30,000 in restitution, even though the district court entered this order 39 months after his sentence was imposed, well past the 90-day deadline of 18 U.S.C. § 3664(d)(5).
The Court noted that the untimeliness of the district court’s action did not give rise to a claim that it lacked subject matter jurisdiction, because the 90-day period, like a statute of limitations, was subject to equitable tolling, and was therefore not jurisdictional. Hence, the defendant could waive his right to appeal the district court’s order. Moreover, the 39-month delay did not constitute an "extreme circumstance" which would defeat an appeal waiver, in part because the defendant’s plea agreement recognized his responsibility for a loss of $30,000. The Court recognized that different circumstances might lead to a different result, and it did not intend to give district courts "free reign" to disregard the 90-day deadline.

Mercer: Motel Room Search Valid

In U.S. v. Mercer, No. 06-13258 (Aug. 28, 2008), the Court affirmed the denial of a motion to suppress arising out of the warrantless search of the defendant’s motel room.
The defendant was arrested and taken into custody at his motel room. After he left the motel, during the night, the police, with the consent of motel employees, searched the defendant’s motel room, and found a firearm and methamphetamine. The defendant claimed that the searched violated his Fourth Amendment rights, because he had booked the motel room until the following day at noon.
The Court held that the motel employees had the authority to consent to a search of the motel room because control of the room had reverted back to the motel, in the circumstances of the defendant’s arrest.
The Court also found that a statement the defendant gave upon arrest was not obtained involuntarily, finding that defendant’s belief that his statements might help him get out of jail was not sufficient to show involuntariness.

Davis: Sentence Reduction Request Does Not Toll AEDPA

In Davis v. Barrow, No. 07-12575 (Aug. 25, 2008), the Court held that a Georgia inmate’s § 2254 habeas petition was untimely, because the inmate’s motion to reduce his sentence did not raise any legal arguments or otherwise attack the legality of his sentence. Accordingly, under Alexander v. Dep’t of Corrections, 523 F.3d 1291 (11th Cir. 2008), the motion was not the type of pleading that tolled the one-year statute of limitations of AEDPA.

Diaz: No Waiver of Right to Trial by Jury

In U.S. v. Diaz, No. 06-13782 (Aug. 22, 2008), the Court reversed a bench trial conviction because the defendant did not give a knowing and voluntary waiver of his right to jury trial.
The defendant was found competent to stand trial, despite his insistence that he was not "Michael Diaz," but had been transformed into a new person named D’Ineiehaimaye D’Inemani. Before trial, Diaz stated that he did "not want any juries infringed upon D"ine because they are not of D’Ine peers of D’Ine peoples but the plebeians and colonizers of this occupational imperialistic power structure." The district court ultimately interpreted this and other statements to waive the right to trial by jury. The court therefore conducted a bench trial, and convicted Diaz of all bank robbery charges.
Reversing, the Court found that "Diaz was unsatisfied with the persons that would form the jury, not that he wanted a bench trial." The Court pointed out that Diaz did not sign a waiver of jury form. His statements regarding his intent to waive his right to jury trial were "equivocal." The Court therefore vacated the conviction.

Benbow: Jury Instruction re: Drug-Trafficking In United States

In U.S. v. Benbow, No. 07-10560 (Aug. 18, 2008), the Court reversed a cocaine-trafficking conviction because the district court declined to instruct the jury that, in order to convict the defendant, the government had to prove that he conspired to either possess or distribute the cocaine in the United States. The Court declined to find that the evidence was insufficient as a matter of law to establish a conspiracy to possess cocaine in the United States.
The cocaine trafficking charge arose out of a sting operation involving a plan to sell large quantities of cocaine in Europe. Accordingly, the case implicated U.S. v. Lopez-Vanegas, 493 F.3d 1305 (11th Cir. 2007), which held that an agreement to traffic in cocaine which did not involve possession or distribution in the United States did not violate American criminal law. Thus, it was appropriate to instruct the jury, as the defendant requested, that the government had to prove a conspiracy to possess or distribute in the United States (not just in Europe), and it was reversible error to fail to do so.
The Court found that the evidence was not insufficient as a matter of law, because the cocaine at issue was going to originate in the United States and be transported to Europe. Since the defendant would have "constructive possession" of the cocaine while it was being transported, this fact could be sufficient to convict. The Court therefore declined to enter judgment in the defendant’s favor.

Vega-Castillo: Fast-track disparity still irrelevant at sentencing

In U.S. v. Vega-Castillo, No. 07-12141 (Aug. 19, 2008) (2-1, Barkett, J., dissenting), the Court rejected the argument that the sentencing court erred when it declined to consider the "disparity" created by unavailability of a "fast-track" disposition program in the district in which the defendant was convicted for illegal reentry, and sentenced. The Court noted that its prior precedent had held that this "disparity" was not a valid consideration, because it was "implicit" in Congressional policy. The Court held that the United States Supreme Court’s decision in Kimbrough did not abrogate prior precedent, because Kimbrough dealt with crack/powder disparities, not the "fast-track" disparity. Kimbrough therefore merely pit "reasoning against holding," not "holding against holding."

Garey: Rejection of Appointed Counsel can voluntarily choose pro se representation

In U.S. v. Garey, No. 05-14631 (Aug. 20, 2008) (en banc), the Court, overruling its precedent in Marshall v. Dugger, 925 F.2d 373 (11th Cir. 1991), held that a defendant waived his right to counsel, even though he did not clearly request to represent himself, when the defendant rejected the only counsel to which he was constitutionally entitled, understanding that his only alternative was self-representation, with its many attendant dangers.
The Court noted that, when the defendant announced that he did not want to continue being represented by appointed counsel because of a conflict, the district court denied the defendant’s motion for substitution of counsel, and set before the defendant two constitutionally permissible choices: continued representation by prior counsel, or self-representation. The district court gave "multiple warnings" about self-representation. "By rejecting appointed counsel, Garey voluntarily chose to proceed pro se as surely as if he had made a request to do so."

Harrison: "First-sale" Defense does not apply to 2318 prosecutions

In U.S. v. Harrison, No. 07-13808 (July 16, 2008), the Court held that the "first-sale" doctrine, which limits copyright holder rights, is not a defense to a prosecution under 18 U.S.C. § 2318 for unauthorized sales of Microsoft authenticating labels, which enabled purchasers to activate pirated copies of Microsoft’s programs.
The Court pointed out that Harrison was not charged with copyright infringement. Further, Congress did not incorporate the "first-sale" doctrine into § 2318. The Court noted that allowing a "first-sale" defense would effectively eliminate restrictions on secondary markets, when Congress’ purpose was to intend to eliminate secondary markets.

Lamons: Flight Attendant Arsonist Gets 271 months

In U.S. v. Lamons, No. 06-14427 (July 5, 2008), the Court affirmed convictions of an airline flight attendant for setting a fire to an airplane while in flight. The Court also affirmed a 271 months’ sentence.
The Court rejected the argument that the prosecution violated the Confrontation Clause when it introduced in evidence a compact disc of data collected from telephone calls. The Court held that no Confrontation Clause violation could occur when this type of evidence is admitted, because it is generated by a machine, not a human being who can be called as a witness and confronted. Challenges to the reliability of this type of evidence must arise under the authentication requirements of the Rules of Evidence.
The Court also rejected Lamons’ claim that the trial court violated Fed. R. Evid. 404(b) when it admitted evidence of a prior incident, for which Lamons was also convicted, in which he made a phone call, just before the departure of a flight, falsely warning that everyone on the flight "was going to die." The Court noted that this prior conviction resembled the fire-setting crime, in that both were committed by Lamons in his capacity as a flight attendant, and designed to target commercial aviation.
Finally, the Court rejected Lamons’ challenge to being sentenced on the basis of a "endangering the safety of . . . an aircraft." The Court found that the fire Lamons set partially burned and melted an HVAC hose, and that a fire is, as the pilot of the airplane testified, "one of the worse [sic] things that can happen on an aircraft."

Richardson: Single Conspiracy, not multiple

In U.S. v. Richardson, No. 06-12610 (July 3, 2008), the Court rejected the defendant’s contention that his various illegal agreements with several drug coconspirators constituted not one but multiple conspiracies.
Richardson claimed that the evidence showed unconnected drug conspiracies, not the single conspiracy charged in the indictment.
The Court rejected the argument that a variance occurred, finding that the jury reasonably could have found the existence of an underlying scheme to buy cocaine for relatively low prices in Miami and sell it for relatively high prices in Atlanta, thereby turning a profit.
Further, even if the jury could not have so concluded, the variance would not have engendered substantial prejudice, and thus would not require reversal. The government would not have been precluded from introducing any evidence. In addition, this was not a situation where a defendant on the periphery of one conspiracy was prejudiced by the admission into evidence of separate unrelated conspiracies; Richardson "was the hub."
The Court denied Richardson’s challenges to the failure to give the jury a "multiple conspiracies" instruction. The Court noted that this was not a case where several defendants were tried together for their varying degrees of participation in a single conspiracy. Multiple conspiracy instructions are not typically given in single-defendant cases. Moreover, the instruction that was given adequately informed the jury that it had to find Richardson joined in the charged conspiracy.

Peterka: Counsel Not Ineffective

In Peterka v. McNeil, No. 07-12363 (July 2, 2008), the Court affirmed the denial of Florida death row inmate’s habeas petition.
Peterka was convicted of a 1989 murder, and sentenced to death. He claimed that his counsel was ineffective for failing to put on evidence at the mitigation phase regarding his service in the National Guard, and his exemplary conduct in jail. The Court denied relief, finding that counsel made a strategic decision not to pursue the National Guard service out of concern that Peterka’s dismissal from the guard on account of his prior theft crime would surface. Further, the prison record showed that Peterka was "little better" than the average inmate.

Smith: Stolen gun and Felon in Possession are different offenses for Double Jeopardy

In U.S. v. Smith, No. 07-13202 (June 30, 2008), the Court rejected the argument that Double Jeopardy bars the government from simultaneously prosecuting and sentencing a defendant for possessing stolen firearms, in violation of 18 U.S.C. § 922(j), and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The Court rejected the government’s argument that the defendant had waived his Double Jeopardy challenge when he pled guilty to both charges. The Court explained that although generally a guilty plea waives all non-jurisdictional challenges to a conviction, one exception to this rule exists when the claim is that the charge is one which may not constitutionally be prosecuted – as when the charge violates Double Jeopardy. Thus, the Court turned to the question of whether the prosecution was valid.
Applying the Blockburger test, which examines whether each offense requires proof of an additional fact which the other does not, the Court concluded that no Double Jeopardy violation occurred. Proving that a defendant was a convicted felon, and proving that he knew the gun was stolen, are different.

Archer: Carrying Concealed weapon not crime of violence

In U.S. v. Archer, No. 07-11488 (June 27, 2008), the Court, on remand from the United States Supreme Court for reconsideration in light of Begay v. U.S., held that the Florida offense of carrying a concealed weapon is not a "crime of violence" and therefore is not a predicate felony to trigger "career offender" classification under the Sentencing Guidelines.
Applying the analytical framework required by Begay, the Court addressed whether carrying a concealed weapon is similar in kind and degree to the crimes enumerated as examples of "crimes of violence" in the Guidelines. The Court found that unlike burglary of a dwelling, arson and the use of explosives, which are all aggressive, violent acts aimed at other persons, carrying a concealed weapon is a "passive crime centering around possession, rather than around any overt action." Further, the offense requires no "intent to conceal the weapon," eliminating the purposeful element of the enumerated offense examples. The Court recognized that Begay abrogated prior contrary Eleventh Circuit precedent.

Woodard: Construction Possession does not require ownership

In U.S. v. Woodard, No. 06-16577 (June 27, 2008), the Court affirmed convictions for marihuana trafficking and gun possession
The Court rejected sufficiency of the evidence arguments, including an argument that a defendant possessed the gun not in furtherance of drug trafficking, but for protectin in a dangerous neighborhood. The jury could reasonably conclude otherwise, since the defendant was arrested after taking delivery of one hundred pounds of marihuana.
The Court rejected a challenge to the giving of an Allen charge, finding nothing coercive about the instruction.
The Court further rejected a challenge to the "constructive possession" jury instruction. The trial court was not required to instruct that "ownership, dominion, or control" over contraband was necessary to establish possession when it had instructed that "both the power and intention to later control" sufficed to prove constructive possession.

Brown: 3.853 motion for DNA does not toll AEDPA

In Brown v. Sec. Dep’t of Corrections, No. 06-15269 (June 19, 2008), the Court held that a Florida inmate’s motion for DNA testing under Fla. R. Crim. P. 3.853 did not constitute the kind of motion for post-conviction relief that tolled AEDPA’s one-year statute of limitations. The Court recognized that the motion’s lack of specificity would not affect whether it was "properly filed," but held that the motion was too distinct from a 3.850 motion for relief to toll the federal limitations period. The Court therefore held that Brown’s federal habeas petition was untimely.