Zelaya: 2241 relief not avalaible in the circumstances

In Zelaya v. Sec., Fla. Dept. of Corrections, No. 12-16462 (Aug. 24, 2015), the Court held that a district court committed no error in deciding not to recharacterize Zelaya’s habeas petition under 28 U.S.C. § 2241 as a § 2255 motion. The Court noted that Zelaya made a strategic choice to file a petition under § 2241, and the district court was not obliged to consider the costs and benefits of the alternative approach. The Court ruled that Zelaya’s § 2241 petition was not cognizable under the savings clause of § 2255(e) because his claim, namely that his illegal reentry conviction was pursuant to an unlawful deportation order, was never foreclosed by Circuit precedent. Zelaya’s claim that he was actually innocent did not entitle him to proceed under § 2241 instead of § 2255. The Court remanded the case to the district court, with instructions to dismiss his petition without prejudice.

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.