Evans: Enticing Commercial Sex is Interstate Commerce

In U.S. v. Evans, No. 06-10907 (Jan. 30, 2007), the Court held that the facts alleged in an indictment for enticing a minor to engage in commercial sex sufficed to establish the interstate jurisdictional nexus.
The defendant claimed that all the conduct that related to his using a minor in commercial sex occurred in South Florida. Disagreeing, the Court pointed out that the Supreme Court upheld a federal criminalizing the purely intrastate growing of marijuana for medicinal purposes, on the ground that this was justified by Congress’ need to broadly regulate interstate commerce in this controlled substance. Here, Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce, and the Court found that this finding was not irrational. Evans’ acts in South Florida contributed to the market that Congress’ comprehensive plan sought to stop. The Court further noted Evans’ use of hotels which service interstate travelers, and use of condoms that traveled in interstate commerce further evidence the substantial effects on interstate commerce.
The Court further rejected Evans’ argument that he had not used instrumentalities of interstate commerce, pointing out that he had used a cell phone, and that cell phones are by their very nature interstate instrumentalities – even in the absence of evidence that they were used to make out-of-state calls.

Hassoun: Padilla Count Reinstated

In U.S. v. Hassoum, No. 04-60001 (Jan. 30, 2007), the Court (Edmondson, Tjoflat, Gibson b.d.) reinstated a count of the indictment which had been dismissed by the district court on multiplicity grounds.
The indictment charged three interrelated offenses: violating 18 U.S.C. § 956(a)(1) by conspiring to commit acts of murder, kidnapping and maiming; violating 18 U.S.C. § 2339A(a) by providing material support and resources in preparation for a violation of § 956(a)(1); and violating 18 U.S.C. § 371 by conspiring to violate § 2339A(a).
The Court noted that multiplicity challenges are reviewed under Blockburger v. U.S., 284 U.S. 299 (1932), which holds that cumulative punishment may not be imposed under several statutes unless each statutory provision requires proof of an additional fact that the other does not.
The Court found that the legislative history regarding § 2339A(a) did not shed light on the question, and that it would therefore examine the elements of the statutes at issue.
The Court pointed out that the Blockburger analysis typically does not turn on the specific facts alleged in the indictment. Here, each of the three counts charged a separate statutory violation, and none merged into another as a lesser-included offense. The § 956(a)(1) count required proof that the defendant conspired to commit acts constituting murder, kidnapping and maiming, the § 371 count required proof of a conspiracy to provide material support in violation of § 2339A(a), and the § 2339A(a) count required proof of providing material support for a violation of § 956(a)(1). As a result, the counts were not multiplicitous.
The Court recognized a scenario in which a complete overlap would exist between the conspiracy counts of the indictment, for example, if the government proved that the defendants provided material support intending that it be used to violate § 956(a)(1), in which case the same evidence would support proof of two offenses (§ 2339A(a) and § 956(a)(1)). But this "mere possibility" did not alter the analysis. The question was: "does a scenario exist where the hypothetical defendant might violate one section without violating the other?" Here this scenario existed, because the defendants might have provided material support in preparation for the § 956 conspiracy, but without being guilty of the § 956 conspiracy. Hence, no multiplicity problem arose. [Cf. Double Jeopardy-Post Blakely, 41 Am. Crim. L. Rev. 1373 (2004) (Double Jeopardy should ask whether a person’s actual blameworthy conduct is being punished twice, not whether two provisions in the abstract are "conceptually distinct")].

Ivory: Second degree rape is "crime of violence"

In U.S. v. Ivory, No. 06-10895 (Jan. 17, 2007), the Court held that a second degree rape conviction under Alabama State law counted as a "crime of violence" for purposes of the career criminal enhancement of the Guidelines. Second degree rape is sex with a person under the age of 16.
The Court noted that the definition of "crime of violence" involved the use of "physical force." The Court further noted that "a person cannot engage in nonconsensual sexual penetration with another without exerting some level of physical force." Under Alabama law, a person under the age of 16 is deemed to be incapable of giving consent to sexual penetration. Consequently, the Court concluded that second degree rape involved the use of physical force.
Alternatively, the Court found that second degree rape presented a risk of the use of physical force, and therefore qualified as a "crime of violence." The Court recognized a Circuit conflict on this aspect of its holding.

Turner: Bruton violation harmless; 240-months ok for theft

In U.S. v. Turner, No. 05-14388 (Jan. 11, 2007), the Court affirmed theft convictions, and a 240-month sentence for said convictions.
The Court recognized that Bruton errors occurred when the trial court allowed two witnesses to testify about statements made by the defendant’s co-defendant spouse – statements which incriminated the defendant. However, because defense counsel failed to contemporaneously object, the Court reviewed the matter for plain error. In light of the ovewhelming evidence of guilt, the Court found no violation of Turner’s substantial rights, and therefore no plain error.
The Guideline sentence was 51-63 months, but the sentencing court imposed a 240-month sentence, exercising its discretion under 18 U.S.C. § 3553(a). The court based its decision on recorded phone conversations in which a co-defendant said he would have murdered the federal agents had he been present at the time of the arrest. The co-defendants also discussed how if they’d escaped they could have left the country. Reviewing the sentence for reasonableness, the Court found that the district court’s finding regarding a lack of remorse, and the other § 3553(a) factors it addressed, supported the 240-month sentence.

Newsome: Public Safety Exception Justifies Gun Seizure

In U.S. v. Newsome, No. 06-11181 (Jan. 16, 2007), the Court (Birch, Pryor & Covington b.d.) held that the public safety exception to Miranda and to the Fourth Amendment applied, and therefore affirmed the denial of a motion to suppress a gun.
The defendant was arrested in a motel room, in which police thought he was hiding with a girl friend. Upon arrest, and placing the defendant in handcuffs, the police asked him if there was "anything or anyone in the room that [police] should know about." Newsome told police he had a gone "over there" and led the police to a bag where the pistol was located. This exchange all occurred before the defendant was given his Miranda warnings.
The Court held that the "public safety" exception of New York v. Quarles, 467 U.S. 649 (1984) applied. The police were under the impression there was someone else in the room, and thought they were in danger. The police were entitled to "neutralize" the threat by finding the gun.
The Court also found no Fourth Amendment violation, because exigent circumstances necessitated the gun’s seizure.
The Court also rejected Newsome’s attempt to obtain a new trial based on the prosecutor’s violation of a court order when, despite a court order not to refer to a statement by Newsome’s wife that he had shot her, the prosecutor mentioned this statement in his opening statement. The Court noted the trial court’s curative instruction and the independent evidence of guilt which made any error harmless.

Odili: Treaty Transfer sentence upheld

In Odili v. U.S. Parole Comm’n, No. 05-12717 (Jan. 10, 2007), the Court rejected a defendant’s challenge to the sentence imposed by the U.S. Parole Commission, pursuant to a treaty transfer, on a U.S. citizen transferred from Panama after serving two years of his 100-month sentence for drug trafficking. The Parole Commission had reduced the sentence to 81 months total time, to be followed by a period of 60 months supervised release or up to a total which, combined with the term of incarceration, would equal the original 100 month sentence. The Parole Commission’s sentence reduction from 100 to 81 months reflected in part Odili’s mistreatment while in a Panamanian jail, and his substantial assistance to authorities.
The Court rejected Odili’s claim that his testimony established that he was entitled to a mitigating role downward sentence adjustment. Citing U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir. 1999) (en banc), the Court noted that the Parole Commission was free to reject Odili’s testimony for lack of credibility.
The Court also rejected the argument that the Parole Commission should have also reduced the term of supervised release when it reduced the term of incarceration. The Court found no violation of any statute in the Commission’s failure to do so.
The Court rejected Odili’s change to the drug quantity determination, noting that Odili had admitted the quantity.
Finally, the Court rejected the argument that the Parole Commission erred in treating the Guidelines as mandatory, post-Booker. The Court agreed that a Parole Commission treaty transfer sentence determination should treat the Guidelines as advisory. However, the Court found that the Parole Commission had in fact treated the Guidelines as advisory. Further, rejecting Odili’s contrary contention, the Court found the sentence to be reasonable.

Perez: Defendant Statements to Pre-Trial Services Are Inadmissible to show guilt

In U.S. v. Perez, No. 05-12971 (Dec. 28, 2006), the Court rejected the argument that a Brady violation occurred when the government failed to disclose to the defendant that it had promised to reduce his wife’s sentence in exchange for her testimony against him. The Court noted that Perez was aware of the reasons his wife testified at trial.
The Court also rejected the argument that Perez should have been given a continuance before trial in order to have more time to examine recordings that were disclosed five days before trial. The Court said that counsel was able to spend 20 hours reviewing the recordings which was sufficient time for him to notice any helpful statements for the defense.
The Court agreed with Perez that the district court in allowing a pre-trial services officer to testify for the prosecution, in violation of 18 U.S.C. § 3153(c)(3), which requires materials disclosed to this officer to remain confidential. Such information cannot be admitted at trial if it goes "to the issue of guilt." Here, the government called the officer to establish Perez’ cell phone number, and his involvement in illegal drug transactions. However, the Court found no "plain error" because other evidence properly admitted at trial independently established Perez’ cell phone number.

Campbell: Jones procedures apply for supervised release revocation

In U.S. v. Campbell, No. 06-12578 (Jan. 3, 2007), the Court held that U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990) applies to supervised release revocation proceedings, and that accordingly a district court after imposing sentence should elicit fully-articulated objections to the court’s findings of facts and conclusions of law, and the manner in which the sentence was imposed.
At the conclusion of Campbell’s supervised release revocation proceedings, after imposing a 24 months sentence, the district court simply asked "Is there anything further?" The Court never discussed the advisory Guidelines during the proceeding.
The Court vacated the sentence, finding that the district court had failed to elicit objections to the sentence, and that based on the record the Court could not determine whether the district court had considered the range established under the Guidelines. The Court therefore also could not determine whether the sentence was reasonable, and vacated the sentence and remanded the case for resentencing in accordance with Jones.

Evans: Victim's fax part of "lulling" of fraud perpetrator

In U.S. v. Evans, No. 05-10624 (Dec. 26, 2006), the Court held that the jury was entitled to find that a fax from a fraud victim to the perpetrator of a fraud was"lulling" activity for purposes of satisfying the wire fraud statute, 18 U.S.C. § 1343.
The Court noted that a communication from a victim can qualify as "lulling." The Court otherwise rejected Evans’ arguments that the fax should not be considered lulling. The Court noted that the fraud scheme – getting a purchaser to continue to send goods to a seller who was, in reality, insolvent – had not yet reached "fruition" since the "lulling" activity was still going on, as the seller failed to alert the buyer of its true financial position. Further, here, Evans responded to the victim’s fax, thereby continuing the lulling, and delaying the discovery of his fraud by authorities. Further, the indictment need not have alleged that Evans intended from the inception of his fraud to engage in lulling activity.

Thompson: 851 notice for 1st trial valid for 2nd trial

In U.S. v. Thompson, No. 05-15052 (Dec. 27, 2006), the Court affirmed the defendant’s convictions for drug and weapons possession, and the life sentence imposed pursuant to 21 U.S.C. § 841 for a defendant with three prior drug felony convictions.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Even though the defendant was not in the apartment in which drugs and guns were found, his papers, including a print out of telephone numbers from his cell phone, were found there.
The Court also rejected the argument that the government did not timely serve him with notice of its intent to seek a sentence enhancement based on prior convictions, as required by 21 U.S.C. § 851(a)(1). The Court noted that Thompson had been served with the notice, in timely fashion, prior to his first trial on the same charges – which ended in a mistrial. This made it unnecessary for the government to refile the notice prior to Thompson’s second trial on these charges. Further, as to certain charges that were newly added to Thompson’s indictment for his second trial, the initial § 851 notice also sufficed. The Court found that this notice gave Thompson adequate notice to challenge the prior convictions, should he have wished to do so, and made him aware of the potential downside of a conviction at trial.

Bohannon: Affirming intent to photograph enhancement

In U.S. v. Bohannon, No. 05-16492 (Dec. 26, 2006), the Court affirmed a 120-month sentence imposed on a defendant convicted of using the internet to entice a minor into sexual activity.
The Court rejected the defendant’s challenge to the facts supporting the enhancement, under USSG § 2G2.1, based on Bohannon’s intention to produce a visual depiction of sexually explicit conduct with a minor. The Court noted that a digital camera was found in the vehicle Bohannon drove to meet with the police officer posing as a 15-year old, and that a search of Bohannon’s home uncovered photographs of minors in various stages of undress. This evidence, the Court found, supported the enhancement.
The Court rejected a reasonableness challenge to the 120-month sentence, noting that the district court’s discussion of the § 3553(a) factors showed it had considered these factors, and that this sentence was below the low-end guideline range of 135 months.

Kinard: Anhydrous Ammonia enhancement vacated

In U.S. v. Kinard, No. 06-10043 (Dec. 20, 2006), the Court (Anderson, Barkett, Goldberg. b.d.) reversed a sentence enhancement for defendants convicted manufacture of amphetamine. The enhancement was based on the defendants’ discharge of anhydrous ammonia. However, the applicable Guideline provided for an enhancement only where one of four specified federal environmental statutes were violated. Here, no violation of any of these statutes was established by the government. Accordinly, the Court vacated the enhancement.

Compas-Diaz: Fast-Track Creates No Equal Protection Violation

In U.S. v. Campos-Diaz, No. 05-16082 (Dec. 19, 2006), the Court joined all other Circuits to have considered the issue and held that no equal protection violation occurs when a defendant charged with illegal re-entry into the United States is not given the opportunity to qualify for a lower sentence based on the Attorney General’s "fast-track" disposition program. "The fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources and easing congestion in judicial districts with a high volume of immigration cases."

Kennard: Bilking Church of $ Conviction Affirmed

In U.S. v. Kennard, No. 05-12742 (Dec. 15, 2006), the Court affirmed the convictions of two brothers for bilking hundreds of churches and other non-profit organizations out of millions of dollars.
The Court rejected the argument that it was error to admit evidence of – and instruct the jury about -- one defendant’s post-indictment flight. The Court noted that this evidence was relevant because it made the defendant look guilty.
The Court also rejected the argument that it was error to exclude the exculpatory testimony of the defendants’ attorney, taken during an SEC investigation of the case. The Court noted that prior deposition testimony can only be introduced if a witness is unavailable (a condition that was satisfied here) and if the party against whom the testimony was offered had a "similar opportunity" to develop the testimony in the prior proceeding. Here, the defendants’ failed to meet their burden of showing that the SEC lawyers who took the lawyer’s deposition had a sufficient similarity of motives to that of the prosecutors in the brothers’ criminal case.
The Court also rejected a sufficiency of the evidence challenge to a money laundering conspiracy conviction, as well as a claim of a variance between the conspiracy charged and the conspiracy proved at trial.
The Court also rejected a challenge to a deliberate ignorance jury instruction, noting that such error is harmless where, as here, the jury could have convicted based on a defendant’s actual knowledge of the criminality.
The Court further rejected a challenge to a sentence, noting that since the actual 38-month sentence was within the Guideline range, no "substantial rights" were violated, and no "plain error" therefore occurred.

Chandler: No Ineffective Failure to Seek Venue Change

In Chandler v. McDonough, No. 06-11190 (Dec. 18, 2006), the Court rejected a death-row inmate’s claim that his trial counsel rendered ineffective assistance by failing to move for a change of venue. Noting that its en banc decision in U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006) had created a high burden on a party seeking to establish presumed prejudice based on a failure to change venue, the Court stated that it was now difficult to establish the requisite "prejudice" for ineffective assistance in failing to seek a change of venue. The Court also upheld the denial of an evidentiary hearing on the ineffectiveness issue, noting that the written expert report regarding the venue was part of the record, and that the defendant had failed to proffer the evidence he would present at a hearing.

Bennett: Prior Burglary Convictions Qualify for 924(e)

In U.S. v. Bennett, No. 05-15376 (Dec. 13, 2006), the Court (Black, Hull, Conway b.d.), rejected the defendant’s argument that he was erroneously classified as an armed career criminal.
The Court pointed out that when Bennett pled to guilty to the offense of possession of a firearm by a convicted felon, he admitted to having three prior felony burglary convictions, as charged in the indictment. Further, Bennett never objected to the factual allegations in the PSI, which described his prior offenses as burglaries. The Court held that Bennett waived the argument, by failing to raise it earlier, that the probation officer should not have looked to materials outside specific court documents when assessing his prior criminal convictions.
The Court, however, reversed the offense level portion of the sentence. The Court noted that based on the district court’s finding that the possession of the firearm was not connected with a violent felony, the sentence offense level should have been one level lower. Since this would have resulted in a lower sentence guideline range, and since the sentencing court said it wanted to impose a sentence near the low end of the applicable guideline range, the error was "plain." The Court therefore vacated the sentence.

Cedeno: "loss" amount does not include both repair and fair market value

In U.S. v. Cedeno, No. 05-16616 (Dec. 6, 2006) (Black, Carnes, Barkett), the Court held that the sentencing court erred in its "loss" calculation, and reversed the sentence.
The defendants made off with $1,485,000 worth of watches. The store got the watches back after the police recovered them. The store spent $13,939 repairing the damage some of the watches suffered during the smash-and-grab job. The issue was whether, to calculate the "loss" amount, the cost of the repair should have been added to the value of the watches before any damage. The district did add these two, resulting in a loss amount in excess of $1.5 million, that is, in excess of the original fair value of the watches.
The Court noted that the district court used the wrong guideline in calculating the loss. Further, the correct guideline capped the "loss" amount at fair market value, which, by definition, could not exceed the value of the watches before the smash-and-grab. The Court rejected the district court’s attempt to explain its calculation as being based on "the perspective of the victim." Here, the jewelry store recovered the watches, so the $1.5 million "loss" amount far exceeded its actual loss. The Court also noted that allowing a sentencing court to disregard the recovery of stolen goods would create a "backwards incentive." In any event, this approach made no sense, as it effectively doubled the value of the goods, once for being stolen, and again for being damages or destroyed.

Lorenzo: Post-sentencing rehabilitation cannot count under 3553(a)

In U.S. v. Lorenzo, No. 05-16119 (Dec. 8, 2006) (Pryor, Fay, Reavley), the Court, on a government appeal, reversed a sentence where the district court, on resentencing with the defendant released from prison, had resentenced the defendant to time served, despite a guideline range of 24-30 months (less time served), on the basis of the defendant’s post-release conduct, which showed his ability to maintain a job and be employed in the community.
Reversing, the Court held that § 3553(a)(1), which indicates that "the history and circumstances of the defendant" should be taken into account at sentencing, should not include post-initial sentencing history and characteristics. The Court reasoned that taking post-sentencing conduct into consideration would "inequitably benefit the few defendants with the opportunity for re-sentencing and create unwarranted sentence disparities." In addition, such consideration was at odds with the Policy Statements of the Sentencing Guidelines.

Barbour: No right to postconviction counsel

In Barbour v. Haley, No. 06-10920 (Dec. 8, 2006), the Court rejected a claim under 42 U.S.C. § 1983 by indigent Alabama death-sentenced inmates that they had a constitutional right to state-appointed counsel or some form of lesser form of state-provided legal assistance in state post-conviction proceedings.
Relying on Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion), the Court held that death-sentenced inmates had no right to counsel in postconviction proceedings. The Court also held that because the inmates failed to specify the lesser form of legal assistance which they claimed to be entitled to, this aspect of the claim also failed.

Lynd: No habeas relief for lack of mental health expert

In Lynd v. Terry, No. 06-11374 (Nov. 28, 2006), the Court denied habeas relief to a Georgia inmate sentenced to death for a 1988 murder.
The Court rejected the claim that Lynd was deprived of his right to the assistance of competent experts in violation of Ake v. Oklahoma, 470 U.S. 68 (1985). The Court found that much of Lynd’s claim was procedurally barred because he failed to raise it earlier, in state proceedings. Further, the Court held that the Georgia state courts did not deviate from federal precedent when they held that Lynd was not entitled to call a mental health expert to testify on his behalf when he refused to submit to an examination by an expert hired by the State of Georgia.
The Court also rejected the argument that counsel was ineffective in advising Lynd to refuse to submit to a state mental health examination, finding that it was Lynd himself who so decided. The Court also found that counsel adequately investigated Lynd’s background and mental health.
The Court further rejected the claim that counsel failed to investigate whether the victim would have not have regained consciousness after being shot in the head twice and placed in the trunk of a car, thereby obviating a kidnapping conviction. The Court found that this argument was developed and presented to the jury.
Finally, the Court rejected the argument that counsel’s representation, years earlier, of the victim’s mother’s ex-husband in a bankruptcy proceeding created a conflict-of-interest.