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.

Gorby: Second Successive Petition not Properly Filed

In Gorby v. McNeil, No 07-11003 (June 20, 2008), the Court held that a Florida death row inmate’s second successive state motion for post-conviction relief did not toll the one-year AEDPA statute of limitations for his federal habeas petition, and that the federal petition was therefore untimely.
Gorby’s second motion for post-conviction relief was untimely under Florida state rules of procedure. Gorby nevertheless argued that this motion was "properly filed," and therefore tolled the federal period of limitations, because the Florida courts addressed his motion on the merits, notwithstanding its untimeliness under Florida law – noting that state procedural defaults do not bar consideration of federal claims unless state courts expressly state that a state judgment rests on a state procedural bar. The Court rejected the analogy to state procedural defaults. The Court also noted the caselaw holding that timeliness is not affected by the fact that a court reached the merits of a claim.

Castaing-Sosa: Mandatory Minimums are Mandatory

In U.S. v. Castaing-Sosa, No. 07-14590 (June 19, 2008), on a government appeal of a sentence, the Court reversed the sentence, because the district court’s 80-month sentence fell below the 120-month statutory mandatory minimum for Sosa’s drug trafficking conviction.
The Court noted that while Booker made the guidelines advisory, it did not affect the mandatory nature of statutory mandatory minimums. The Court noted that a sentencing court can sentence below a statutory mandatory minimum only if the government has filed a substantial assistance motion, or if the defendant is "safety-valve" eligible. Neither of these applied to Sosa. The Court concluded that while the district court was understandably concerned about the higher sentence Sosa would receive in relation to his co-defendants, it was nonetheless bound to impose the statutory minimum.

Campa: Cuban Shootdown convictions upheld

In U.S. v. Campa, No. 01-17176 (June 4, 2008), the Court affirmed all convictions of all defendants convicted of espionage and related offenses.
The Court rejected the challenges to evidence obtained from searches authorized under the Foreign Intelligence Surveillance Act. The Court noted that the government certifications in the search application were not clearly erroneous.
The Court rejected the argument that the district court should not have held an ex parte hearing regarding the government’s discovery obligations under the Classified Information Procedures Act, noting that the Act did not prohibit such a hearing. The district court also did not err when it declined to unseal the record of its ex parte hearing, as the statute has no provision for unsealing, and the government’s right to keep some classified information from defense counsel would be ineffective if, after the trial, the government had to expose the information.
The Court also rejected a Batson challenge to the government’s challenges of black venire members, noting that the unchallenged presence of blacks on the jury.
The Court held that the failure to register as a foreign agent offense was a general intent crime, and therefore rejected the claim that a defendant’s knowledge of the registration requirement was an element of the offense.
The Court also rejected challenges to the sufficiency of the evidence, noting, among other things, the defendants’ overt acts in furtherance of a conspiracy, such as flying over Homestead Air Base, encrypted work directions, an "escape plan," and a counterfeit passport.
The Court rejected the argument that the conspiracy to murder must involve an intent to murder within the special jurisdiction of the United States, noting that mens rea does not extend to the jurisdictional elements of an offense.
The Court rejected the argument that a defendant did not know the object (murder) of the conspiracy, pointing out that he wrote a message after the shootdown of Brothers to the Rescue planes that called the "operation to which we contributed" a "success." The Court also rejected the argument that the government should have called an expert witness to interpret the messages that the defendant received from the Cuban government: "the meaning of the messages was evident." The Court added that the "malice aforethought" element of murder was established by proof of the defendant’s knowledge of the plan to shoot down planes, and that the death of persons on board was "substantially certain." (Judge Kravitch dissented, stating that the government had only proved an intent to "confront" airplanes, not to shoot them down).
Turning to sentencing, the Court agreed with Campa that he should not have received a USSG § 3B1.1 "manager or supervisor" enhancement. The enhancement was based on his managing the assets of the conspiracy, which is an insufficient basis for imposing this enhancement. The Court therefore vacated this portion of the sentence and remanded for resentencing.
As to Medina, the Court agreed that the district court should have considered whether a downward departure was warranted in light of the "little harm" that his information would caused, even if it were categorized as "top secret." The Court affirmed Medina’s obstruction enhancement, finding that giving a false name to a magistrate at a detention hearing qualifies for this enhancement.
As to Guerrero, the Court affirmed a "special skills" enhancement: "Skills in civil engineering, radio technology, and computer technology are legitimate skills that Guerrero turned to criminal purposes."

Johnson: Florida battery is a "violent felony" for ACCA

In U.S. v. Johnson, No. 07-13497 (May 30, 2008), the Court held that a defendant’s prior Florida state conviction for battery qualifies as a "violent felony" for purposes of the ACCA mandatory minimum for felon in possession of ammunition offenders who have three prior convictions.
The Court noted that the Florida battery offense requires at a minimum the actual and intentional touching or striking of another person against that other person’s will. Accordingly, the offense has the requisite use or attempted use of force necessary to qualify as a "violent felony." The Court rejected the argument that the Florida battery offense should not be considered a "violent felony" because the Florida Supreme Court had held that under Florida state law, when, as in Johnson’s case, the battery had been a misdemeanor elevated to the status of a felony, the offense did not invariably enough involve enough force to be considered a "forcible felony" for purposes of Florida’s habitual offender law. First, the Florida Supreme Court case had been decided 19 days before the Eleventh Circuit’s own prior interpretation of the Florida battery statute, and even though the Eleventh Circuit might have overlooked the case, it now remained bound by its own precedent. Second, the Florida case involve state law, not federal law, and the Court remained bound by its prior holding that "touching" or "striking" suffices to establish the element of force needed to trigger the ACCA enhancement.

Day: Challenge to Georgia Parole Board Timely

In Day v. Hall, No. 06-16060 (May 29, 2008), the Court held that a Georgia inmate’s federal habeas petition should not have been dismissed as untimely, and therefore reversed the district court’s dismissal. The Court rejected the argument that the AEDPA one-year statute of limitations started to run from date Day was first denied parole. The Court noted that his challenge to the Parole Board’s failure to promulgate an eligibility requirement for parole was properly brought as the petition for mandamus in Georgia state courts. This proceeding, combined with other proceedings, was pending for 362 days – less than the one-year limitations period.

Young: Superseding Indictment Violates Speedy Trial Act

In U.S. v. Young, No. 07-13626 (May 27, 2008), the Court held that one count of conviction should have been dismissed (with or without prejudice) for violation of the Speedy Trial Act.
The government initially indicted Young on a single count for possessing an unregistered silencer. Two months later, the government filed a five-count superseding indictment, which included the original silencer count and four additional, unrelated drug counts. Prior to trial, Young moved to dismiss the silencer count on Speedy Trial grounds, because more than seventy days had passed since his original indictment.
The Court held that the silencer count should have been dismissed on Speedy Trial grounds. The Court noted that the situation where a supervising indictment is filed is analogous to the dismissal of an indictment followed by a new indictment – a situation squarely covered by the Speedy Trial Act. The Court therefore remanded the case to the district court to determine the appropriate form of dismissal of the silencer count.

Mendez: 371 requires United States to be conspiracy's target

In U.S. v. Mendez, No. 07-13433 (May 21, 2008), the Court reversed a conspiracy to defraud the United States conviction, under 18 U.S.C. § 371, because the fraud involved Florida commercial driver’s licenses, which did not defraud the "United States," as the statute requires.
The district court had held that there was sufficient federal involvement in the fraud because the federal government issued regulations for obtaining a commercial driver’s licence. Reversing, the Court said this connection was insufficient to show that the United States was the "target" of the fraud. It also did not suffice that the Florida guidebook for licenses referenced the United States regulations, since the defendant did not know of this reference.
The Court, however, upheld Mendez’ separate conviction for unlawful production of a false commercial licence, in violation of 18 U.S.C. § 1028(a)(1). The Court rejected the argument that there was an insufficient nexus with interstate commerce. The Court pointed out that Mendez intended to operate a commercial vehicle, and, even if the vehicle never left Florida, its operation in Florida sufficed to establish the minimal nexus required.

Carruth: Failure to give Defendant Right to Allocute is Plain Error

In U.S. v. Carruth, No. 07-12060 (May 22, 2008), the Court vacated a sentence for violation of supervised release because the district court failed to give the defendant an opportunity to allocute, as required by Fed. R. Crim. P. 32.1(b)(2)(E).
On plain error review, the Court cited the text of the Rule, Supreme Court precedent, and its own precedent, for the principle that a district "must personally extend to the defendant the right of allocution." The Court added that prejudice "is presumed" when a defendant is not given an opportunity to allocute and there exists the possibility of a lower sentence.

Madera: Attorney General Decides Sex Offender Retroactivity

In U.S. v. Madera, No. 07-12176 (May 23, 2008), the Court reversed the district court for failing to dismiss an indictment that charged Madera with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006.
The defendant, having been convicted of sexual abuse in New York, moved to Florida, but failed to register a sex offender. This occurred shortly after the enactment of the Walsh Act but before the Attorney General had promulgated rules governing whether previously convicted sex offenders were retroactively subject to the new law. The district court held that it had the power to determine whether the Walsh Act applied retroactively, held that it did apply retroactively and did apply to Madera. Reversing, the Court noted that the Act vested this power exclusively in the Attorney General. Because the Attorney General had not yet promulgated retroactivity rules, Madera could not be charged with having failed to register.

Young: Battery Involving Fluids is 4B1.1 crime of violence

In U.S. v. Young, No. 07-14780 (May 19, 2008), the Court held that a prior Florida state conviction for "Battery of a Child Involving Fluids" qualifies as a crime of violence for purposes of the career offender enhancement, USSG § 4B1.1. The Court noted that a "crime of violence" involves the use of "physical force." The Court noted that "physical force" is different from "violent force." The statute at issue requires the violator to cause the child to come into contact with bodily fluids by "throwing, tossing, projecting, or expelling" the fluids, that is, it requires a physical act, directed against a person, and the "minimal contact" of the impact of the fluids satisfies this requirement.

Newland: No ineffectiveness in failing to establish confession was coerced

In Newland v. Hall, No. 05-15981 (May 14, 2008), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court rejected the argument that defense counsel was ineffective for failing to introduce in evidence police threats to charge the defendant’s wife with aggravated assault, and murder, to establish that the defendant’s confession was coerced. The Court noted that the defendant waited a full day after hearing the threats before confessing, and, in addition, the wife could have been charged with a crime in connection with the murder.
The Court also rejected the argument that counsel was ineffective for failing to investigate Newland’s background, which would have helped him find mitigating evidence and avoid the death penalty. The Court declined to fault counsel for not uncovering evidence about the defendant’s childhood and neurological disorder, because the defendant himself opted not to have counsel pursue these matters. The Court also declined to fault counsel for failing to rely on these matters at sentencing, noting that counsel’s strategy of portraying the crime as a single aberrant episode was less problematic than relying on a history of disorders.