In Hunter v. Ferrell, No. 08-16597 (Nov. 18, 2009), the Court held that despite the fact that an Alabama inmate missed the deadline for filing a federal habeas petition by eight years, because of his mental retardation he was entitled to an evidentiary hearing on whether the filing deadline should be equitably tolled on account of his retardation.
The Court noted that Hunter alleged that his mental retardation prevented him from timely filing his habeas petition. Moreover, the record supported this claim. First, his prior pro se filings were filed with the assistance of prison law clerks. Second, a mental health expert’s report “strongly suggests that Hunter’s well-documented, irreversible mental retardation is severe enough that Hunter, by himself, is not able to understand and comply with AEDPA’s filing requirements and deadlines.”
Friday, November 20, 2009
Monday, November 09, 2009
Hammond: Death penalty affirmed for Georgia inmate
In Hammond v. Hall, No. 08-11109 (Nov. 4, 2009) (Carnes, Marcus, Pryor), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1988 murder.
The Court rejected Hammond’s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults. The Court noted that this was not a record of prior convictions, nor “evidence.”
The Court also rejected Hammond’s request to have a shotgun tested in order to show that it was not the murder weapon. The Court noted that this request comes “years too late.”
The Court noted that an audiotape of witness testimony was suppressed, and that this audiotape might have shown that the witnesses disagreed about who had removed jewelry from the murder victim. But this discrepancy merely involved a “detail” in the evidence.
The Court also rejected the claim that the State failed to disclose the full scope of immunity of Hammond’s girlfriend, who was an accomplice in the charged murder and other Hammond crimes. The Court recognized that the failure to disclose a witness’ immunity requires a new trial if the witness is the State’s lead witness. But here there was other evidence against Hammond, and the jury knew at least of the witness immunity for the murder charge at issue.
Looking at the suppressed evidence as a whole, the Court concluded that “against the mountain of inculpatory evidence,” its confidence in the verdict was not undermined.
The Court rejected an ineffective assistance of counsel claim based on trial counsel’s failure to seek a mistrial during the sentencing phase of trial, when the prosecutor improperly warned the jury that if it did not sentence Hammond to death, he would someday be a free man. Under Georgia law, this improper argument triggers a right to a mistrial, but trial counsel instead accepted the trial court’s curative instruction. The Court deferred to the ruling of the Georgia courts that any ineffectiveness did not result in prejudice to Hammond, because of the aggravating circumstances and the trial court’s curative instruction. The Court found inadequate support in Supreme Court caselaw for defendant’s argument that the failure to obtain a mistrial is, of itself, prejudice. Further, the Georgia mistrial statute did not embody a constitutional right to not have the jury be aware of the possibility of parole if a death sentence is not imposed. Finally, the Court noted that the Georgia statute, by concealing truthful information about the defendant’s parole eligibility, does not make the sentencing process more fair or reliable.
The Court rejected Hammond’s Brady claim that the State suppressed its suspicions that the female accomplice who testified for the State against Hammond at trial had been his accomplice in prior assaults. The Court noted that this was not a record of prior convictions, nor “evidence.”
The Court also rejected Hammond’s request to have a shotgun tested in order to show that it was not the murder weapon. The Court noted that this request comes “years too late.”
The Court noted that an audiotape of witness testimony was suppressed, and that this audiotape might have shown that the witnesses disagreed about who had removed jewelry from the murder victim. But this discrepancy merely involved a “detail” in the evidence.
The Court also rejected the claim that the State failed to disclose the full scope of immunity of Hammond’s girlfriend, who was an accomplice in the charged murder and other Hammond crimes. The Court recognized that the failure to disclose a witness’ immunity requires a new trial if the witness is the State’s lead witness. But here there was other evidence against Hammond, and the jury knew at least of the witness immunity for the murder charge at issue.
Looking at the suppressed evidence as a whole, the Court concluded that “against the mountain of inculpatory evidence,” its confidence in the verdict was not undermined.
The Court rejected an ineffective assistance of counsel claim based on trial counsel’s failure to seek a mistrial during the sentencing phase of trial, when the prosecutor improperly warned the jury that if it did not sentence Hammond to death, he would someday be a free man. Under Georgia law, this improper argument triggers a right to a mistrial, but trial counsel instead accepted the trial court’s curative instruction. The Court deferred to the ruling of the Georgia courts that any ineffectiveness did not result in prejudice to Hammond, because of the aggravating circumstances and the trial court’s curative instruction. The Court found inadequate support in Supreme Court caselaw for defendant’s argument that the failure to obtain a mistrial is, of itself, prejudice. Further, the Georgia mistrial statute did not embody a constitutional right to not have the jury be aware of the possibility of parole if a death sentence is not imposed. Finally, the Court noted that the Georgia statute, by concealing truthful information about the defendant’s parole eligibility, does not make the sentencing process more fair or reliable.
Thursday, November 05, 2009
Brown: SORNA provides adequate registration requirement notice
In U.S. v. Brown, No. 08-17244 (Nov. 5, 2009), the Court affirmed a conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), and the imposition of a sentence that included a life term of supervised release.
On plain error review, the Court rejected a challenge to the life term of supervised release was invalid. At his guilty plea colloquy, the court incorrectly told the defendant that he faced a maximum three-year term of supervised release. The PSI correctly stated the life term. The Court noted the error at the guilty plea colloquy was plain, but there was no prejudice because Brown did not establish that he would not have pled guilty had he known that the maximum supervised release term was life instead of three years.
The Court rejected the argument that Brown could not have violated SORNA by failing to register in Alabama when he moved to Alabama, as SORNA required, because Alabama had not yet implemented the SORNA requirements. The Court explained that Alabama’s requirements were different from Brown’s, and that Alabama already had a sex offender registry in place.
The Court also rejected Brown’s Due Process challenge to the registration requirement. The Court found that, by pleading guilty, he had waived the factual argument that he was prevented from registering. The Court also found that Brown received adequate notice of the registration requirement. The Court noted that Brown had actual knowledge of his duty to register in Alabama. Further, there were circumstances that would have prompted Brown to inquire further, including his own past compliance with the registration requirement in another state (North Carolina).
On plain error review, the Court rejected a challenge to the life term of supervised release was invalid. At his guilty plea colloquy, the court incorrectly told the defendant that he faced a maximum three-year term of supervised release. The PSI correctly stated the life term. The Court noted the error at the guilty plea colloquy was plain, but there was no prejudice because Brown did not establish that he would not have pled guilty had he known that the maximum supervised release term was life instead of three years.
The Court rejected the argument that Brown could not have violated SORNA by failing to register in Alabama when he moved to Alabama, as SORNA required, because Alabama had not yet implemented the SORNA requirements. The Court explained that Alabama’s requirements were different from Brown’s, and that Alabama already had a sex offender registry in place.
The Court also rejected Brown’s Due Process challenge to the registration requirement. The Court found that, by pleading guilty, he had waived the factual argument that he was prevented from registering. The Court also found that Brown received adequate notice of the registration requirement. The Court noted that Brown had actual knowledge of his duty to register in Alabama. Further, there were circumstances that would have prompted Brown to inquire further, including his own past compliance with the registration requirement in another state (North Carolina).
Tuesday, November 03, 2009
Harris: Fleeing Police at High Speed is "Crime of Violence"
In U.S. v. Harris, No. 08-15909 (Nov. 3, 2009), the Court affirmed reliance on a prior Florida state conviction for eluding a police officer at a high rate of speed as a “crime of violence” for Guidelines criminal history sentence enhancement purposes.
The Court noted that the elements of the offense were fleeing at high speed or a wanton disregard for safety, which are akin to crimes committed while aware that “violence might ensue.” The Court stated that a person who fled police at a high speed is the kind of person who might point a gun and pull the trigger. The crime displays a “callousness toward risk.” The conduct is also “aggressive” because highways are populated with people. The Court cited cases on other Circuits which reached the same conclusion.
The Court noted that the elements of the offense were fleeing at high speed or a wanton disregard for safety, which are akin to crimes committed while aware that “violence might ensue.” The Court stated that a person who fled police at a high speed is the kind of person who might point a gun and pull the trigger. The crime displays a “callousness toward risk.” The conduct is also “aggressive” because highways are populated with people. The Court cited cases on other Circuits which reached the same conclusion.
Sanchez: Errors in 3559 sentence enhancements
In U.S. v. Sanchez, No. 06-15143 (Oct. 30, 2009), the Court affirmed convictions of several defendants relating to the attempted burglary of a marijuana grow-house.
The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records. The Court also rejected challenges to the use of summaries of this evidence during trial, pointing out that the trial court had instructed the jury that the summaries were not evidence and that the evidence was the call records.
Turning to sentencing, on plain error review, the Court vacated sentences based on the federal “three strikes” law, 18 U.S.C. § 3559(c). As the government conceded, one defendant’s prior drug-trafficking conviction did not qualify as a prior drug trafficking offense for purposes of § 3559 because the drug quantity was unspecified, and § 3559 requires prior convictions of quantities above a specified amount in the cross-referenced federal drug statute.
The Court remanded to the district court another defendant’s argument that his prior “escape” conviction did not qualify as a crime of violence for § 3559 purposes. The Court noted that the district court had erroneously believed that the defendant could not raise this challenge to his sentence.
Finally, the Court found no procedural or substantive error in the district court’s upward departure and upward variance based on his criminal history. The Court noted that the district court had stated that it had considered the § 3553 factors.
The Court rejected defense challenges to the admission of cell phone records, finding them to be reliable business records. The Court also rejected challenges to the use of summaries of this evidence during trial, pointing out that the trial court had instructed the jury that the summaries were not evidence and that the evidence was the call records.
Turning to sentencing, on plain error review, the Court vacated sentences based on the federal “three strikes” law, 18 U.S.C. § 3559(c). As the government conceded, one defendant’s prior drug-trafficking conviction did not qualify as a prior drug trafficking offense for purposes of § 3559 because the drug quantity was unspecified, and § 3559 requires prior convictions of quantities above a specified amount in the cross-referenced federal drug statute.
The Court remanded to the district court another defendant’s argument that his prior “escape” conviction did not qualify as a crime of violence for § 3559 purposes. The Court noted that the district court had erroneously believed that the defendant could not raise this challenge to his sentence.
Finally, the Court found no procedural or substantive error in the district court’s upward departure and upward variance based on his criminal history. The Court noted that the district court had stated that it had considered the § 3553 factors.
Monday, November 02, 2009
Tate: 946-month sentence affirmed for bank robber
In U.S. v. Tate, No. 09-10288 (Oct. 30, 2009), the Court affirmed a defendant’s convictions for multiple bank robberies and firearm-possessions.
The Court rejected Tate’s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home. Here the circumstances established probable cause.
The Court also rejected Tate’s argument that the district court should have invited defense counsel to state whether he had any Batson challenges before the jury is sworn. The Court declined to create a new rule requiring the Court to ask for Batson objections.
Turning to sentencing, and recognizing a Circuit conflict on the issue, the Court held that 18 U.S.C. § 924(c) requires that sentence for using a firearm during the commission of a crime of violence be imposed consecutively. The Court also rejected Tate’s challenge to the reasonableness of his 946-month sentence, pointing out that it was within the Guideline range, and noting Tate’s escalating criminal history since his teenage years.
The Court rejected Tate’s challenge to the warrantless search of his home. The Court pointed out that probable cause suffices to justify search of a home when one would expect the defendant to have hidden stolen materials at his home. Here the circumstances established probable cause.
The Court also rejected Tate’s argument that the district court should have invited defense counsel to state whether he had any Batson challenges before the jury is sworn. The Court declined to create a new rule requiring the Court to ask for Batson objections.
Turning to sentencing, and recognizing a Circuit conflict on the issue, the Court held that 18 U.S.C. § 924(c) requires that sentence for using a firearm during the commission of a crime of violence be imposed consecutively. The Court also rejected Tate’s challenge to the reasonableness of his 946-month sentence, pointing out that it was within the Guideline range, and noting Tate’s escalating criminal history since his teenage years.
Tuesday, October 27, 2009
Maples: No Excuse for Procedural Default
In Maples v. Allen, No. 07-15187 (Oct. 26, 2009), the Court affirmed the denial of habeas relief to an Alabama death-row inmate.
After his murder conviction and death sentence were affirmed on direct appeal in the Alabama courts, Maples, represented by counsel, filed for collateral relief in Alabama state court. The court denied relief, and Maples’ lawyers neglected to file a timely appeal. The Alabama courts found that the deadline for filing an appeal barred Maples from pursuing collateral relief. Maples brought a federal habeas action, alleging the same claims asserted in the Alabama collateral relief suit. The Court found that these claims were procedurally defaulted.
The Court found that Maples could not excuse the procedural default, because he was not entitled to representation in his collateral proceeding, and therefore could not establish ineffective assistance.
The Court rejected Maples’ argument that the Alabama trial court should sua sponte have given the jury an instruction regarding manslaughter and voluntary intoxication. The Court found no such requirement in the caselaw, and noted that the evidence would not have supported a voluntary intoxication defense.
After his murder conviction and death sentence were affirmed on direct appeal in the Alabama courts, Maples, represented by counsel, filed for collateral relief in Alabama state court. The court denied relief, and Maples’ lawyers neglected to file a timely appeal. The Alabama courts found that the deadline for filing an appeal barred Maples from pursuing collateral relief. Maples brought a federal habeas action, alleging the same claims asserted in the Alabama collateral relief suit. The Court found that these claims were procedurally defaulted.
The Court found that Maples could not excuse the procedural default, because he was not entitled to representation in his collateral proceeding, and therefore could not establish ineffective assistance.
The Court rejected Maples’ argument that the Alabama trial court should sua sponte have given the jury an instruction regarding manslaughter and voluntary intoxication. The Court found no such requirement in the caselaw, and noted that the evidence would not have supported a voluntary intoxication defense.
Velez: Criminal Defense attorney transactions exempt
In U.S. v. Velez, No. 09-10199 (Oct. 26, 2009), the Court affirmed the district court’s dismissal of a money-laundering count in a prosecution against a criminal defense lawyer, in which the government charged that the lawyer approved of the transfer of funds for a drug dealer’s defense knowing that they were derived from criminal activity.
The Court relied on 18 U.S.C. § 1957(f), which exempts from money-laundering prosecution "any transaction necessary to preserve a person’s representation as guaranteed by the sixth amendment." The Court rejected the government’s argument that the plain meaning of this statute had been modified by a subsequent Supreme Court decision. The Court pointed out that this decision involved a different, civil forfeiture statute. Consequently, the decision had no bearing on the exemption statute.
The Court relied on 18 U.S.C. § 1957(f), which exempts from money-laundering prosecution "any transaction necessary to preserve a person’s representation as guaranteed by the sixth amendment." The Court rejected the government’s argument that the plain meaning of this statute had been modified by a subsequent Supreme Court decision. The Court pointed out that this decision involved a different, civil forfeiture statute. Consequently, the decision had no bearing on the exemption statute.
Lee: "Walkaway" offense not "violent felony" under ACCA
In U.S. v. Lee, No. 08-14724 (Oct. 26, 2009), the Court, citing Chambers v. U.S., 129 S.Ct. 687 (U.S. 2009), held that a prior "walkaway" escape conviction is not a "violent felony" and therefore vacated the defendant’s 15-year mandatory minimum sentence under the Armed Career Criminal Act. The Court affirmed the felon in possession conviction.
The Court rejected Lee’s Fourth Amendment challenge to the seizure of a gun from the glove compartment of a car in which he was a passenger. The Court found that, as a passenger, Lee lacked standing to challenge the search of the vehicle.
The Court also rejected Lee’s argument that the judge should not have used his own ruler and car keys to demonstrate for the jury the concepts of actual and constructive possession.
Turning to sentencing, the Court applied the approach of the Supreme Court in Begay and Chambers, and concluded that Lee’s prior conviction, which was based on his leaving a halfway house without permission, was not a crime of violence. The Court cited similar decisions in other Circuits which reached the same conclusion in light of Begay and Chambers. The Court noted that Lee’s walkaway offense did not involve "aggression," and was not the type of conduct "that one hears about and remarks, ‘that’s the kind of thing an armed career criminal would do.’"
The Court rejected Lee’s Fourth Amendment challenge to the seizure of a gun from the glove compartment of a car in which he was a passenger. The Court found that, as a passenger, Lee lacked standing to challenge the search of the vehicle.
The Court also rejected Lee’s argument that the judge should not have used his own ruler and car keys to demonstrate for the jury the concepts of actual and constructive possession.
Turning to sentencing, the Court applied the approach of the Supreme Court in Begay and Chambers, and concluded that Lee’s prior conviction, which was based on his leaving a halfway house without permission, was not a crime of violence. The Court cited similar decisions in other Circuits which reached the same conclusion in light of Begay and Chambers. The Court noted that Lee’s walkaway offense did not involve "aggression," and was not the type of conduct "that one hears about and remarks, ‘that’s the kind of thing an armed career criminal would do.’"
Friday, October 23, 2009
Quintina: Ethnicity not basis for police encounter
In U.S. v. Quintana, No. 08-12967 (Oct. 22, 2009), the Court rejected a defendant’s claim that his right to Equal Protection was violated when the police initiated a consensual encounter with him – an encounter which ultimately led to a conviction for illegal re-entry in violation of 8 U.S.C. § 1326(a) – based on their belief that he appeared to be of Middle Eastern ethnicity. The Court found that it did not need to reach the question whether a consensual encounter can give rise to an Equal Protection violation, because the record showed that the encounter in Quintana’s case was not based on Quintana’s apparent race or ethnicity, but on the police’s interest in questioning him about why he showed up a nightclub with a video camera and did not want to go in, and took flight upon seeing the police.
Friday, October 16, 2009
Chavez: Simultaneous Bench and Jury Trials Ok
In U.S. v. Chavez, No. 08-12638 (Oct. 16, 2009), the Court affirmed drug trafficking convictions and sentences.
Several defendants were indicted in the case. One pled not guilty. Four pled guilty but reserved the right to have a bench trial requiring proof beyond a reasonable doubt as to the drug quantities. The five went to trial together. The trial court did not disclose to the jury that some defendants had pled guilty; the verdict form ultimately only sought a verdict as to one defendant.
The Court rejected this defendant’s argument that his motion for a severance should have been granted. While acknowledging the novelty of simultaneous jury and bench trials, and declining to endorse the technique, the Court found no prejudice.
The Court rejected the argument that a mistrial should have been granted when a government witness, in response to a question on cross-examination, answered: "The only way to know [the answer] is through the Defendant." The Court found that curative instructions cured the error, which was all but invited by defense counsel’s question.
The Court also rejected a challenge to the sufficiency of the evidence, noting the abundant circumstantial evidence, and other evidence.
Turning to sentencing, the Court rejected a challenge to the reasonableness of Chavez’ life sentence. The Court noted that the sentence was consistent with the Guidelines.
The Court rejected another defendant’s sentencing challenge. The Court noted that the sentence was based on cash found at the defendant’s residence, which the sentencing court converted to methamphetamine quantities. The Court found the inference that the cash came from drug trafficking to be reasonable.
Several defendants were indicted in the case. One pled not guilty. Four pled guilty but reserved the right to have a bench trial requiring proof beyond a reasonable doubt as to the drug quantities. The five went to trial together. The trial court did not disclose to the jury that some defendants had pled guilty; the verdict form ultimately only sought a verdict as to one defendant.
The Court rejected this defendant’s argument that his motion for a severance should have been granted. While acknowledging the novelty of simultaneous jury and bench trials, and declining to endorse the technique, the Court found no prejudice.
The Court rejected the argument that a mistrial should have been granted when a government witness, in response to a question on cross-examination, answered: "The only way to know [the answer] is through the Defendant." The Court found that curative instructions cured the error, which was all but invited by defense counsel’s question.
The Court also rejected a challenge to the sufficiency of the evidence, noting the abundant circumstantial evidence, and other evidence.
Turning to sentencing, the Court rejected a challenge to the reasonableness of Chavez’ life sentence. The Court noted that the sentence was consistent with the Guidelines.
The Court rejected another defendant’s sentencing challenge. The Court noted that the sentence was based on cash found at the defendant’s residence, which the sentencing court converted to methamphetamine quantities. The Court found the inference that the cash came from drug trafficking to be reasonable.
Monday, October 05, 2009
Martinez: Orchestrator not automatically organizer
In U.S. v. Martinez, No. 08-13846 (Oct. 5, 2009) (Marcus, Hill & Voorhees, b.d.), the Court reversed an "organizer or leader" sentence enhancement, under USSG § 3B1.1(a), that had been imposed on a defendant convicted of marijuana trafficking.
At his plea colloquy, Martinez admitted that he "orchestrated" weekly shipments of mail parcels containing marijuana from Texas to various locations in the Middle District of Florida. Despite this admission, the Court concluded that the government failed to establish that Martinez was an "organizing or leader," as defined by the seven explanatory factors listed in Comment four of USSG § 3B1.1.
The Court found that the term "orchestrate" is not synonymous with control. Orchestrate may mean no more than coordinating a transaction, as opposed to creating or managing it.
Further, the government presented no evidence that Martinez had decision-making authority. The "bare" record also did not indicate Martinez’ relative responsibility in relation to others. Nor was there evidence that Martinez recruited any co-conspirators, claimed a larger share of the proceeds of the crime, or whether he acted at the behest of a supervisor. At the sentencing hearing, Martinez alleged that he did not know who the leader of the group was. While Martinez admitted that he had co-conspirators, the evidence did not indicate that these persons were his subordinates.
The Court stated that at re-sentencing, the government could present evidence in support of the claimed leadership enhancement.
At his plea colloquy, Martinez admitted that he "orchestrated" weekly shipments of mail parcels containing marijuana from Texas to various locations in the Middle District of Florida. Despite this admission, the Court concluded that the government failed to establish that Martinez was an "organizing or leader," as defined by the seven explanatory factors listed in Comment four of USSG § 3B1.1.
The Court found that the term "orchestrate" is not synonymous with control. Orchestrate may mean no more than coordinating a transaction, as opposed to creating or managing it.
Further, the government presented no evidence that Martinez had decision-making authority. The "bare" record also did not indicate Martinez’ relative responsibility in relation to others. Nor was there evidence that Martinez recruited any co-conspirators, claimed a larger share of the proceeds of the crime, or whether he acted at the behest of a supervisor. At the sentencing hearing, Martinez alleged that he did not know who the leader of the group was. While Martinez admitted that he had co-conspirators, the evidence did not indicate that these persons were his subordinates.
The Court stated that at re-sentencing, the government could present evidence in support of the claimed leadership enhancement.
Wednesday, September 23, 2009
Faris: Proposed Guideline Amendment does not affect binding Circuit precedent
In U.S. v. Faris, No. 08-16336 (Sept. 23, 2009), the Court upheld the conviction and sentence of a defendant convicted of possession of child pornography, and enticing a minor to engage in sexual activity.
The Court rejected Faris’ argument that his prosecution violated the Commerce Clause. The Court pointed out that Faris used the internet, and the internet is an instrumentality of interstate commerce.
The Court also rejected Faris’ argument that the Necessary and Proper Clause did not confer authority to prosecute him. The Court noted that Congress has "substantial leeway" in how to regulate purely intrastate activity that it deems can, in the aggregate, frustrate the broader regulation of interstate economic activity.
Turning to sentencing, the Court rejected Faris’ argument that his sentence should not have been enhanced for having "influenced" a "minor," because the "minor" in his case was a law enforcement officer. The Court recognized that the applicable Guideline is scheduled to be amended on November 1, 2009, to provide that the enhancement does not apply in a case where the only minor is a law enforcement officer. However, the precedent of the Eleventh Circuit, which is contrary to this amendment, remains binding, and the Guideline amendment has no force until adopted.
The Court rejected Faris’ argument that his prosecution violated the Commerce Clause. The Court pointed out that Faris used the internet, and the internet is an instrumentality of interstate commerce.
The Court also rejected Faris’ argument that the Necessary and Proper Clause did not confer authority to prosecute him. The Court noted that Congress has "substantial leeway" in how to regulate purely intrastate activity that it deems can, in the aggregate, frustrate the broader regulation of interstate economic activity.
Turning to sentencing, the Court rejected Faris’ argument that his sentence should not have been enhanced for having "influenced" a "minor," because the "minor" in his case was a law enforcement officer. The Court recognized that the applicable Guideline is scheduled to be amended on November 1, 2009, to provide that the enhancement does not apply in a case where the only minor is a law enforcement officer. However, the precedent of the Eleventh Circuit, which is contrary to this amendment, remains binding, and the Guideline amendment has no force until adopted.
Monday, September 21, 2009
Rhode: No ineffective investigation of mitigation
In Rhode v. Hall, No. 08-16960 (Sept. 17, 2009), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders.
The Court rejected all of Rhode’s ineffective assistance of counsel claims. The Court found that counsel adequately investigated mitigation evidence, having, inter alia, traveled out of state to interview ten possible mitigation witnesses.
The Court also rejected a challenge to the presentation of mitigation evidence, pointing out that defense counsel called nine witnesses during the penalty phase. Counsel could not be faulted for not calling witnesses that counsel viewed as cumulative, or for presenting evidence that the jury might have viewed as aggravating, not mitigating.
The Court distinguished cases where counsel had failed to investigate voluminous mitigating evidence, or failed to examine the files that the prosecutor had warned would be used at trial.
The Court rejected all of Rhode’s ineffective assistance of counsel claims. The Court found that counsel adequately investigated mitigation evidence, having, inter alia, traveled out of state to interview ten possible mitigation witnesses.
The Court also rejected a challenge to the presentation of mitigation evidence, pointing out that defense counsel called nine witnesses during the penalty phase. Counsel could not be faulted for not calling witnesses that counsel viewed as cumulative, or for presenting evidence that the jury might have viewed as aggravating, not mitigating.
The Court distinguished cases where counsel had failed to investigate voluminous mitigating evidence, or failed to examine the files that the prosecutor had warned would be used at trial.
Wednesday, September 16, 2009
Segarra: 924(c) means consecutive sentences in all cases
In U.S. v. Segarra, No. 08-17181 (Sept. 15, 2009), the Court, joining the majority of Circuits to have addressed this question of statutory interpretation, held that 18 U.S.C. § 924(c) mandates a consecutive sentence for firearm possession offense in furtherance of a drug trafficking crime, even when the statutory mandatory minimum for the drug trafficking crime exceeds the mandatory minimum for the firearms offense. The Court rejected the Second Circuit’s contrary reading of the statute.
Given the Court’s interpretation of § 924(c), Segarra’s waiver of his right of appeal did not give him any basis to appeal his sentence. The Court therefore dismissed his appeal.
Given the Court’s interpretation of § 924(c), Segarra’s waiver of his right of appeal did not give him any basis to appeal his sentence. The Court therefore dismissed his appeal.
Friday, September 11, 2009
Jordan: Rejecting Government Cross-Appeal of Probation Sentence
In U.S. v. Jordan, No. 06-12563 (Sept. 11, 2009), the Court affirmed convictions and sentences arising out of an Alabama Sheriff’s unlawful use of the National Crime Information Center database to obtain the criminal records of those who voted in a Sheriff’s reelection race (which the Sheriff lost).
The Court rejected the argument that the indictment did not give the defendant adequate notice of the charges. The Court rejected the argument that the indictment failed to allege a crime, pointing out that it alleged that the NCIC was used for non-law enforcement purposes, in violation of 18 U.S.C. § 641.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Jordan, as a lawyer acting for Sheriff Woodward, obtained NCIC printouts, and used some of the information they disclosed.
The Court found no error in the district court’s refusal to give a "good faith" defense jury instruction, pointing that the trial court’s instruction regarding the meaning of "knowingly" and "willfully" adequately addressed the good faith defense concept. The Court also found no error in refusing the give the defendant’s "confused" instruction regarding the attorney-client privilege.
The Court also rejected the government’s cross-appeal of the sentences of six month probation. The government argued that the sentencing court erred because it "did not deem the offense to be serious." The Court found that the sentencing court’s findings of fact were not clearly erroneous. Moreover, the sentencing court gave "appropriate consideration" to the § 3553(a) factors.
The Court rejected the argument that the indictment did not give the defendant adequate notice of the charges. The Court rejected the argument that the indictment failed to allege a crime, pointing out that it alleged that the NCIC was used for non-law enforcement purposes, in violation of 18 U.S.C. § 641.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Jordan, as a lawyer acting for Sheriff Woodward, obtained NCIC printouts, and used some of the information they disclosed.
The Court found no error in the district court’s refusal to give a "good faith" defense jury instruction, pointing that the trial court’s instruction regarding the meaning of "knowingly" and "willfully" adequately addressed the good faith defense concept. The Court also found no error in refusing the give the defendant’s "confused" instruction regarding the attorney-client privilege.
The Court also rejected the government’s cross-appeal of the sentences of six month probation. The government argued that the sentencing court erred because it "did not deem the offense to be serious." The Court found that the sentencing court’s findings of fact were not clearly erroneous. Moreover, the sentencing court gave "appropriate consideration" to the § 3553(a) factors.
Thursday, September 10, 2009
Garcia-Bercovich: Shrink wrapped boxes part of same package
In U.S. v. Garcia-Bercovich, No. 08-12061 (Sept. 10, 2009), the Court affirmed convictions for marijuana trafficking.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Garcia-Bercovich traveled across the United States to pick up packages for an individual he barely knew. He had previously been convicted of importation of marijuana. One could infer that Garcia-Bercovich deliberately avoided learning the contents of the items he picked up so as to have this defense in the event of prosecution. Lastly, the defendant’s attempt to flee was evidence of guilt.
The Court also found no Fourth Amendment violation in the search of the boxes in which marijuana was found. Marijuana was found by a private search in a single box which came shrink wrapped on a single pallet with other boxes. The other boxes were then opened by police without a warrant. The Court rejected the argument that the search of the other boxes required a warrant, finding that all the boxes were part of the same "package" because they were shrink wrapped together on the same pallet.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Garcia-Bercovich traveled across the United States to pick up packages for an individual he barely knew. He had previously been convicted of importation of marijuana. One could infer that Garcia-Bercovich deliberately avoided learning the contents of the items he picked up so as to have this defense in the event of prosecution. Lastly, the defendant’s attempt to flee was evidence of guilt.
The Court also found no Fourth Amendment violation in the search of the boxes in which marijuana was found. Marijuana was found by a private search in a single box which came shrink wrapped on a single pallet with other boxes. The other boxes were then opened by police without a warrant. The Court rejected the argument that the search of the other boxes required a warrant, finding that all the boxes were part of the same "package" because they were shrink wrapped together on the same pallet.
Thursday, September 03, 2009
Johnson: State Probation does not Suspend Federal Supervised Release
In U.S. v. Johnson, No. 09-10351 (Sept. 2, 2009), the Court held that time spent serving a State sentence on probation, while under a federal sentence of supervised release, does toll the running of the period of supervised release. The fact that the State sentence of imprisonment was suspended so that Johnson could serve it on probation did not affect the tolling analysis. Hence, Johnson’s alleged violations of his conditions of federal supervised release, which occurred, when one excludes the time spent on probation on a State sentence, within the federal supervised release three-year term, could be the basis for revocation of supervised release. The Court therefore affirmed the district court’s revocation of Johnson’s supervised release, based on violations that occurred within the three-year period.
Friday, August 28, 2009
McIntosh: Second Indictment must be dismissed after guilty plea to first indictment
In U.S. v. McIntosh, No. 08-15549 (Aug. 27, 2009), the Court held that Double Jeopardy barred the government from indicting a defendant for a second time, after the defendant pled guilty to a first indictment charging the same offenses, but on different (erroneous) dates.
A first indictment charged drug and firearm offenses occurring in February 2007. The defendant pled guilty. However, prior to sentencing, the government informed the court that the date of the indictment was wrong: the offenses occurred in November 2005. The government obtained a second indictment, and moved to dismiss the first one.
The Court noted that, for Double Jeopardy purposes, jeopardy attaches when a court accepts a guilty plea. It is a conviction. Thus, here, jeopardy attached. The Court rejected the argument that the case was "exceptional," pointing out that one purpose of Double Jeopardy is to protect against "prosecutorial negligence." The Court disagreed with the district court that the dismissal of the first indictment, without prejudice, "effectively withdrew" the plea. The dismissal did not vacate the plea, or the conviction. Moreover, the defect in the indictment was not "fatal" and therefore did not justify a second indictment.
The Court also rejected the government’s argument that McIntosh had implicitly consented to the second indictment, pointing out that defense counsel had stated that he was not acquiescing in a second indictment.
The Court remanded the case with instructions to vacate the second indictment.
A first indictment charged drug and firearm offenses occurring in February 2007. The defendant pled guilty. However, prior to sentencing, the government informed the court that the date of the indictment was wrong: the offenses occurred in November 2005. The government obtained a second indictment, and moved to dismiss the first one.
The Court noted that, for Double Jeopardy purposes, jeopardy attaches when a court accepts a guilty plea. It is a conviction. Thus, here, jeopardy attached. The Court rejected the argument that the case was "exceptional," pointing out that one purpose of Double Jeopardy is to protect against "prosecutorial negligence." The Court disagreed with the district court that the dismissal of the first indictment, without prejudice, "effectively withdrew" the plea. The dismissal did not vacate the plea, or the conviction. Moreover, the defect in the indictment was not "fatal" and therefore did not justify a second indictment.
The Court also rejected the government’s argument that McIntosh had implicitly consented to the second indictment, pointing out that defense counsel had stated that he was not acquiescing in a second indictment.
The Court remanded the case with instructions to vacate the second indictment.
Gomez
In U.S. v. Gomez, No. 09-11031 (Aug. 28, 2009), the Court held that it was not harmless error for the trial judge to fail to instruct the jury – contrary to the Supreme Court’s recent holding in Flores-Figueroa v. U.S., 129 S.Ct. 1886 (2009) – that the government had to show that the defendant knew that the means of identification that was the subject of the identity theft charged under 18 U.S.C. §1028A(a)(1) "belonged to another person."
The Court noted defense argument that Gomez used a false identification document in order to get a job, to fulfill "the American dream," and not to "live off of somebody else . . . or steal." The Court noted that the evidence supported this defense; the jury could have found that the government failed to prove that Gomez knew that the identification documents belonged to another person. The error therefore was not harmless. The Court vacated the conviction and remanded for further proceedings.
The Court noted defense argument that Gomez used a false identification document in order to get a job, to fulfill "the American dream," and not to "live off of somebody else . . . or steal." The Court noted that the evidence supported this defense; the jury could have found that the government failed to prove that Gomez knew that the identification documents belonged to another person. The error therefore was not harmless. The Court vacated the conviction and remanded for further proceedings.
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