In In re Lambrix, No. 10-14476 (Oct. 26, 2010), the Court denied the application of a Florida death row inmate, convicted of a murder that occurred in 1983, for leave to file a second or successive habeas corpus petition.
The Court noted that the standard for a second or successive petition was a showing that facts could not have been discovered earlier, and that, but for a constitutional error, no reasonable factfinder would find the defendant guilty. Lambrix relied on the recantation of one of the prosecution’s witnesses. The Court noted that the recantation could have been discovered earlier, and that reasonable factfinders could still have found Lambrix guilty. The Court found Lambrix’s other allegations to similarly lack merit.
Wednesday, October 27, 2010
Tuesday, October 26, 2010
Wayerski: Child Pornography Conspiracy Conviction Duplicative
In U.S. v. Wayerski, No. 09-11379 (Oct. 26, 2010), the Court held that convictions of defendants for both engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g), and in a child pornography conspiracy, in violation of 18 U.S.C. § 2252A, were unduly duplicative, in violation of Double Jeopardy, but otherwise affirmed all convictions.
To avoid unconstitutional duplicativeness, a criminal conviction must involve proof of a fact that another conviction does not involve. Here, the “in concert” element of the exploitation enterprise offense involved the same proof of agreement that the conspiracy offense involved. Therefore the two convictions were duplicative. The Court therefore vacated the conspiracy convictions and remanded for resentencing.
The Court, however, rejected a vagueness challenge to the child exploitation statute. The Court noted that the statute, which criminalizes commission of several enumerated child pornography felonies, on three or more separate instances, involving more than one victim, in concert with three or more other persons, squarely applied to the defendants elaborate and secret scheme for using the internet to share images of child pornography. The Court noted that one to whose conduct a statute squarely applies may not successfully challenge it for vagueness. Thus, the Court found unpersuasive the defendants’ hypothetical that one could violate the statute in a manner of seconds by exchanging images over the internet.
Turning to sentencing, the Court rejected the argument that, because the defendants’ conduct in avoiding detection occurred before arrest, an obstruction of justice enhancement should not have been imposed. The Court pointed out that the obstruction of justice enhancement covers conduct that occurred prior to arrest, and prior to the start of an investigation.
The Court rejected one defendant’s argument that the district court erred in finding that he posed a risk to the community if released from prison, because a defense psychologist testified otherwise at sentencing. The Court noted that the district court relied on other evidence, including the defendant’s diaries, which the psychologist may not have reviewed. The Court found that the 360 and 365 months sentences imposed on two defendants were not excessive, noting the “harm caused by caused by child pornography offenses.”
To avoid unconstitutional duplicativeness, a criminal conviction must involve proof of a fact that another conviction does not involve. Here, the “in concert” element of the exploitation enterprise offense involved the same proof of agreement that the conspiracy offense involved. Therefore the two convictions were duplicative. The Court therefore vacated the conspiracy convictions and remanded for resentencing.
The Court, however, rejected a vagueness challenge to the child exploitation statute. The Court noted that the statute, which criminalizes commission of several enumerated child pornography felonies, on three or more separate instances, involving more than one victim, in concert with three or more other persons, squarely applied to the defendants elaborate and secret scheme for using the internet to share images of child pornography. The Court noted that one to whose conduct a statute squarely applies may not successfully challenge it for vagueness. Thus, the Court found unpersuasive the defendants’ hypothetical that one could violate the statute in a manner of seconds by exchanging images over the internet.
Turning to sentencing, the Court rejected the argument that, because the defendants’ conduct in avoiding detection occurred before arrest, an obstruction of justice enhancement should not have been imposed. The Court pointed out that the obstruction of justice enhancement covers conduct that occurred prior to arrest, and prior to the start of an investigation.
The Court rejected one defendant’s argument that the district court erred in finding that he posed a risk to the community if released from prison, because a defense psychologist testified otherwise at sentencing. The Court noted that the district court relied on other evidence, including the defendant’s diaries, which the psychologist may not have reviewed. The Court found that the 360 and 365 months sentences imposed on two defendants were not excessive, noting the “harm caused by caused by child pornography offenses.”
Wednesday, October 20, 2010
Mateos: Medicare Fraud Convictions and Sentences Affirmed
In U.S. v. Alvarez, No. 08-17178 (Oct. 19, 2010), the Court affirmed Medicare fraud convictions and sentences.
The Court agreed with defendant Alvarez that the district court erred when it excluded a recorded statement made by one Medicare conspirator to Alvarez that “there’s no fraud whatsoever here” – a statement that indicated that Alvarez was not privy to the scheme. The statement was not hearsay, because Alvarez did not seek to admit it for its truth, but to show that Alvarez was not aware of the fraud. It therefore did not matter whether, as the district court found, the statement did not fit within a hearsay exception, because the statement was not hearsay in the first place.
However, the error in excluding the recorded statement was harmless because the statement was effectively admitted through witness testimony.
The Court found no error in the district court’s admission of evidence that co-defendant Mateos had been married to a ringleader of the fraud. The Court did not find this evidence so “inflammatory” as to render the district court’s cautionary instruction ineffective.
Turning to sentencing, the Court found that the 30-year sentence imposed on Alvarez was not outside the range of reasonable sentences. The Court recognized the “troubling” disparity with lesser sentences imposed on more culpable co-conspirators. However, these defendants provided substantial assistance to the government. In addition, the Court found that the district court’s reasons for an upward variance were justified: Alvarez was a doctor who breached her position of trust; the fraud lasted over a period of months; Alvarez followed a lower standard of care with regard to the health of her patients; Medicare fraud was rampant in the Miami area; Alvarez “blatantly lied” during her testimony at trial and showed “no remorse.” In addition, Congress recently amended the Sentencing Guidelines for Medicare fraud, and under the new Guidelines Alvarez’ 30-year sentence fell at the high end of the Guidelines.
The Court rejected Mateos’ argument that the district court erroneously found her responsible for the entire intended loss (more than $9 million). The evidence showed that Mateos was aware of the essence of the fraud, and the district court therefore held her responsible for losses stemming from all reasonably foreseeable acts of coconspirators.
The Court agreed with defendant Alvarez that the district court erred when it excluded a recorded statement made by one Medicare conspirator to Alvarez that “there’s no fraud whatsoever here” – a statement that indicated that Alvarez was not privy to the scheme. The statement was not hearsay, because Alvarez did not seek to admit it for its truth, but to show that Alvarez was not aware of the fraud. It therefore did not matter whether, as the district court found, the statement did not fit within a hearsay exception, because the statement was not hearsay in the first place.
However, the error in excluding the recorded statement was harmless because the statement was effectively admitted through witness testimony.
The Court found no error in the district court’s admission of evidence that co-defendant Mateos had been married to a ringleader of the fraud. The Court did not find this evidence so “inflammatory” as to render the district court’s cautionary instruction ineffective.
Turning to sentencing, the Court found that the 30-year sentence imposed on Alvarez was not outside the range of reasonable sentences. The Court recognized the “troubling” disparity with lesser sentences imposed on more culpable co-conspirators. However, these defendants provided substantial assistance to the government. In addition, the Court found that the district court’s reasons for an upward variance were justified: Alvarez was a doctor who breached her position of trust; the fraud lasted over a period of months; Alvarez followed a lower standard of care with regard to the health of her patients; Medicare fraud was rampant in the Miami area; Alvarez “blatantly lied” during her testimony at trial and showed “no remorse.” In addition, Congress recently amended the Sentencing Guidelines for Medicare fraud, and under the new Guidelines Alvarez’ 30-year sentence fell at the high end of the Guidelines.
The Court rejected Mateos’ argument that the district court erroneously found her responsible for the entire intended loss (more than $9 million). The evidence showed that Mateos was aware of the essence of the fraud, and the district court therefore held her responsible for losses stemming from all reasonably foreseeable acts of coconspirators.
Tuesday, October 19, 2010
Kobal: Absence of brain damage evidence did not warrant habeas relief
In Kokal v. Sec. Dep’t of Corrections, No. 08-11722 (Oct. 18, 2010), the Court denied habeas relief to a Florida inmate sentenced to death for the 1983 murder a sailor.
The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword.
The Court rejected Kobal’s argument that his lawyer was ineffective for failing to conduct an investigation that would have revealed Kobal’s brain damage. The Court found that the Florida Supreme Court, in previously balancing the aggravating and mitigating factors, had not weighed the factors unreasonably in concluding that Kobal was not prejudiced by the lack of evidence of brain damage. The Court noted the “heartless” nature of the murder, and that, even had Kobal presented evidence of brain damage (which the Court found weak), he would also have presented evidence of his substance abuse on the night of the crime, a two-edged sword.
Friday, October 08, 2010
Sistrunk: Entrapment is affirmative defense to felon in possession charge
In U.S. v. Sistrunk, No. 09-12798 (Oct. 7, 2010), the Court affirmed a conviction for being a felon in possession of a firearm.
Citing U.S. v. Deleveaux, the Court recognized that, like the defense of justification, the defense of entrapment can be raised in a felon-in-possession case, as an affirmative defense, to negate criminal liability even though the prosecution has proven all the elements of the offense. The district court therefore erred in ruling that this defense was not available to Sistrunk. However, the error in failing to give the instruction was harmless because the facts did not warrant the instruction: the government merely presented Sistrunk with an “attractive” opportunity to rob a stash house, but did not engage in “excessive pressure or manipulation.”
Citing U.S. v. Deleveaux, the Court recognized that, like the defense of justification, the defense of entrapment can be raised in a felon-in-possession case, as an affirmative defense, to negate criminal liability even though the prosecution has proven all the elements of the offense. The district court therefore erred in ruling that this defense was not available to Sistrunk. However, the error in failing to give the instruction was harmless because the facts did not warrant the instruction: the government merely presented Sistrunk with an “attractive” opportunity to rob a stash house, but did not engage in “excessive pressure or manipulation.”
Friday, October 01, 2010
Gomes: FSA does not apply to pre-FSA case
In U.S. v. Gomes, No. 10-11225 (Oct. 1, 2010) (Tjoflat, Barkett, Fay), the Court held that the district court committed no error when it imposed the then-applicable statutory mandatory minimum of 120 months on a defendant convicted of trafficking in more than 50 grams of crack cocaine. The Court found that the recently enacted Fair Sentencing Act, which increased the crack cocaine quantities required to qualify for this statutory mandatory minimum punishment, did not change the result, because the Act took effect after the defendant committed his crime, and the saving clause, 1 U.S.C. § 109, bars the Fair Sentencing Act from affecting the punishment.
Tuesday, September 14, 2010
Bauder: Ineffective Misadvice on civil commitment consequences
In U.S v. Bauder, No. 10-10657 (Sept. 13, 2010), the district court affirmed the grant of habeas relief to a Florida inmate convicted of aggravated stalking. Prior to his plea, Bauder's state lawyer told him that he could not face involuntary civil commitment under Florida law. This was misadvice: after Bauder finished his sentence on the plea, the State moved to have him committed and he was then committed. The Court found that counsel's advice was ineffective assistance, and that it was prejudical.
Williams: gunshot in public housing project is basis to pull over quickly exiting vehicle
In U.S. v. Williams, No. 10-10612 (Sept. 13, 2010), the Court held that a police officer did not violate the Fourth Amendment when he pulled over the defendant’s vehicle after it quickly pulled out of a public housing project, known to be a high crime area, from which the officer had just heard a gunshot. The district court therefore did not err in declining to suppress the firearm found in Williams’ vehicle.
The Court relied on cases in the Fifth and Tenth Circuits which held that a police officer was acting on more than a “hunch” in like circumstances. In such circumstances, an officer has a reasonable suspicion to pull over the vehicle – sufficient reason under Terry v. Ohio to withstand a Fourth Amendment challenge.
The Court relied on cases in the Fifth and Tenth Circuits which held that a police officer was acting on more than a “hunch” in like circumstances. In such circumstances, an officer has a reasonable suspicion to pull over the vehicle – sufficient reason under Terry v. Ohio to withstand a Fourth Amendment challenge.
Darling: Denial of Certificate of Appelability
In Darling v. Sec. Dep’t of Corrections, No. 10-13408 (Sept. 14, 2010), the Court denied a certificate of appealability to a Florida death-row inmate. The Court noted that a certificate of appealability is not available to appeal a district court’s denial of habeas corpus relief unless the petitioner shows that reasonable jurists could debate the decision.
Here, the prosecutor’s potentially erroneous closing argument suggestion that certain mitigating factors could require imposition of the death penalty was cured by the trial court’s instructions on this point.
In addition, though Darling claimed counsel was ineffective for failing to put on mitigating evidence about his background, evidence on this point was “inconclusive.”
Finally, although Darling argued that the Vienna Convention was violated when Florida failed to contact the Bahamian Embassy upon his arrest, the Court found no authority indicating that such a violation could invalidate an otherwise valid conviction and sentence.
Because reasonable jurists could not debate these points, Darling did not qualify for a certificate of appealability.
Here, the prosecutor’s potentially erroneous closing argument suggestion that certain mitigating factors could require imposition of the death penalty was cured by the trial court’s instructions on this point.
In addition, though Darling claimed counsel was ineffective for failing to put on mitigating evidence about his background, evidence on this point was “inconclusive.”
Finally, although Darling argued that the Vienna Convention was violated when Florida failed to contact the Bahamian Embassy upon his arrest, the Court found no authority indicating that such a violation could invalidate an otherwise valid conviction and sentence.
Because reasonable jurists could not debate these points, Darling did not qualify for a certificate of appealability.
Thursday, September 09, 2010
McGill: Possession of Shotgun not "Violent Felony"
In U.S. v. McGill, No. 09-14167 (Sept. 8, 2010), on a government appeal, the Court held that a defendant’s prior Florida State conviction for unlawful possession of a short-barreled shotgun did not qualify as a prior “violent felony” for purposes of the 15-year mandatory minimum 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (ACCA).
The Court noted that Begay governed whether the prior conviction qualified as a “violent felony.” The question therefore was whether possessing an outlawed short-barreled shotgun is “roughly similar, in kind as well as degree of risk posed, to burglary, arson, extortion and the unlawful use of explosives.” The Court noted that, like explosives, short-barreled shotguns are regulated by the National Firearms Act (NFA). The Court pointed out that ACCA referred to the “use” of explosives, not mere possession, as a qualifying offense. The Court reasoned that if Congress required the “use” of explosives, not mere possession, as a qualifying ACCA offense, it would also intend to require the “use” and not the mere possession of a short-barreled shotgun, another NFA-regulated weapon. The Court concluded that McGill’s possession of a short-barreled shotgun did not qualify as a “violent felony.”
The Court noted that Begay governed whether the prior conviction qualified as a “violent felony.” The question therefore was whether possessing an outlawed short-barreled shotgun is “roughly similar, in kind as well as degree of risk posed, to burglary, arson, extortion and the unlawful use of explosives.” The Court noted that, like explosives, short-barreled shotguns are regulated by the National Firearms Act (NFA). The Court pointed out that ACCA referred to the “use” of explosives, not mere possession, as a qualifying offense. The Court reasoned that if Congress required the “use” of explosives, not mere possession, as a qualifying ACCA offense, it would also intend to require the “use” and not the mere possession of a short-barreled shotgun, another NFA-regulated weapon. The Court concluded that McGill’s possession of a short-barreled shotgun did not qualify as a “violent felony.”
Wednesday, September 01, 2010
Rainier: Service Station Burglary Counts as Violent Felony
In U.S. v. Rainier, No. 09-14014 (Aug. 31, 2010), the Court held that a defendant’s two prior Alabama burglaries each qualified as a “violent felony” for purposes of his sentence enhancement under the Armed Career Criminal Act (ACCA).
The Court agreed with Rainier that his prior Alabama third-degree burglary was not a “generic burglary” because Alabama defined this offense to include burglary of a vehicle, aircraft or watercraft – whereas a generic burglary involves the burglary of a building. However, under the “modified categorical approach,” a prior non-generic burglary can still qualify as a violent felony if certain record documents established that the crime involved the burglary of a building. Here, the charging documents showed that Rainier burglarized a service station and a shoe store. Thus, the offenses involved a building, and therefore qualified as violent felonies.
The Court agreed with Rainier that his prior Alabama third-degree burglary was not a “generic burglary” because Alabama defined this offense to include burglary of a vehicle, aircraft or watercraft – whereas a generic burglary involves the burglary of a building. However, under the “modified categorical approach,” a prior non-generic burglary can still qualify as a violent felony if certain record documents established that the crime involved the burglary of a building. Here, the charging documents showed that Rainier burglarized a service station and a shoe store. Thus, the offenses involved a building, and therefore qualified as violent felonies.
Friday, August 27, 2010
Di Pietro: Immigration Marriage Law Not Void for Vagueness
In U.S. v. Di Pietro, No. 09-13726 (Aug. 27, 2010), the Court affirmed a conviction for aiding and abetting individuals to enter into marriage for the purpose of evading federal immigration laws, and rejected constitutional challenges to 8 U.S.C. § 1325(c).
The Court rejected a void for vagueness challenge to the law, pointing out that Di Pietro conceded that the law was not vague as it applied to her. She could not challenge the law as it applied to others. The Court recognized that certain First Amendment “overbreadth” challenges can be raised by one person for others. Here, however, Di Pietro was raising a void for vagueness challenge, and her arguments did not implicate sufficiently “weighty” concerns for others to support her going forward on her challenge.
The Court also rejected the argument that the immigration law unconstitutionally preempts Florida’s marriage law. The Court noted that, to the extent there was a conflict, federal law would invalidate state law. Moreover, there was no conflict: the federal law was like other criminal laws that involve the use of legal means for illegal purposes.
The Court rejected a void for vagueness challenge to the law, pointing out that Di Pietro conceded that the law was not vague as it applied to her. She could not challenge the law as it applied to others. The Court recognized that certain First Amendment “overbreadth” challenges can be raised by one person for others. Here, however, Di Pietro was raising a void for vagueness challenge, and her arguments did not implicate sufficiently “weighty” concerns for others to support her going forward on her challenge.
The Court also rejected the argument that the immigration law unconstitutionally preempts Florida’s marriage law. The Court noted that, to the extent there was a conflict, federal law would invalidate state law. Moreover, there was no conflict: the federal law was like other criminal laws that involve the use of legal means for illegal purposes.
Wednesday, August 25, 2010
Zaldivar: Alien Smuggling Enhancement for Death on Board
In U.S. v. Zaldivar, No. 09-12035 (Aug. 24, 2010), the Court affirmed a ten-level sentence enhancement for a defendant convicted of alien smuggling, based on the death of one of the aliens.
The alien died as a result of injuries sustained when the boat he was on was being chased by a Coast Coard cutter on the high seas. The defendant stated that he was not the person who operated the boat when it was fleeing from the Coast Guard, and that he requested the driver to stop for the Coast Guard. The Court noted that the relevant conduct for the offense included all “foreseeable” actions that could result in death. The Guidelines do not require that an individual’s actions be the proximate cause of the death. Here, the death was foreseeable because Zaldivar participated in the illegal transportation of 32 Cubans in an overcrowded boat that was designed to travel at high rates of speed. The boat did not contain enough life preservers for all its passengers. It was traveling in the dark, without headlights, to avoid detection. Weather conditions on the open seas have the potential to deteriorate. It was foreseeable to Zaldivar that the operator of the boat would attempt to evade interdiction by fleeing at a high speed.
The Court also found that Zaldivar had not established that he was entitled to a sentence reduction based on his claim that he was involved in alien smuggling for a reason “other than for profit.” The Court noted that Zaldivar’s family was not on the boat, and that aliens who were on the boat stated that they expected to pay for the trip.
The alien died as a result of injuries sustained when the boat he was on was being chased by a Coast Coard cutter on the high seas. The defendant stated that he was not the person who operated the boat when it was fleeing from the Coast Guard, and that he requested the driver to stop for the Coast Guard. The Court noted that the relevant conduct for the offense included all “foreseeable” actions that could result in death. The Guidelines do not require that an individual’s actions be the proximate cause of the death. Here, the death was foreseeable because Zaldivar participated in the illegal transportation of 32 Cubans in an overcrowded boat that was designed to travel at high rates of speed. The boat did not contain enough life preservers for all its passengers. It was traveling in the dark, without headlights, to avoid detection. Weather conditions on the open seas have the potential to deteriorate. It was foreseeable to Zaldivar that the operator of the boat would attempt to evade interdiction by fleeing at a high speed.
The Court also found that Zaldivar had not established that he was entitled to a sentence reduction based on his claim that he was involved in alien smuggling for a reason “other than for profit.” The Court noted that Zaldivar’s family was not on the boat, and that aliens who were on the boat stated that they expected to pay for the trip.
Tuesday, August 24, 2010
Johnson: Counsel not ineffective in failing to call prison expert
In Johnson v. Upton, No. 09-16090 (Aug. 23, 2010), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1994 murder.
The Court rejected the claim that counsel was ineffective for failing to call a penological expert who would have testified, at the penalty phase of Johnson’s trial, that, statistically inmates who serve long prison sentences (instead of being sentenced to death) do not present a future danger because of their tendency to adjust to prison life. The Court found that evidence of Johnson’s own history of having attacked a jailer, and escaped, would undermine the expert’s testimony. Moreover, the statistical evidence was not conclusive. Further, it would have assumed that Johnson would be classified as a high security inmate, a fact unhelpful in mitigation.
The Court also found that any of the claimed ineffective assistance would not have prejudiced Johnson in the penalty phase, in view of the particularly gruesome nature of the murder, and Johnson’s subsequent assault when he escaped from jail.
The Court rejected the claim that counsel was ineffective for failing to call a penological expert who would have testified, at the penalty phase of Johnson’s trial, that, statistically inmates who serve long prison sentences (instead of being sentenced to death) do not present a future danger because of their tendency to adjust to prison life. The Court found that evidence of Johnson’s own history of having attacked a jailer, and escaped, would undermine the expert’s testimony. Moreover, the statistical evidence was not conclusive. Further, it would have assumed that Johnson would be classified as a high security inmate, a fact unhelpful in mitigation.
The Court also found that any of the claimed ineffective assistance would not have prejudiced Johnson in the penalty phase, in view of the particularly gruesome nature of the murder, and Johnson’s subsequent assault when he escaped from jail.
Monday, August 23, 2010
Bellizia: Ineffective Counsel for Failing to argue heroin was not weighed
In Bellizia v. Dep’t of Corrections, No. 09-13838 (Aug. 20, 2010), the Court affirmed the grant of habeas relief to a Florida inmate because his defense counsel was constitutionally ineffective in failing to challenge the State’s failure to weigh each of the pellets of heroin found on Bellizia..
The Court noted that under Florida caselaw, which had been controlling law for many years, visual examination of drug packages is insufficient to determine the weight of the package. The State must weigh and test every package. Here, the State failed to weigh the drugs and Belizia was sentenced to a 22-year term based on an estimate of the weight of the drugs. No competent counsel would have failed to argue that the weight was illegally calculated.
The Court noted that under Florida caselaw, which had been controlling law for many years, visual examination of drug packages is insufficient to determine the weight of the package. The State must weigh and test every package. Here, the State failed to weigh the drugs and Belizia was sentenced to a 22-year term based on an estimate of the weight of the drugs. No competent counsel would have failed to argue that the weight was illegally calculated.
Chirino-Alvarez: Alien Smuggler Participated Throughout
In U.S. v. Chirino-Alvarez, No. 09-11317 (Aug. 23, 2010), the Court rejected sufficiency of the evidence challenges to alien-smuggling convictions.
Citing the Ninth Circuit’s en banc decision in U.S. v. Lopez, the Court recognized that the evidence would be insufficient if Chirino-Alvarez’ participation in the alien-smuggling scheme occurred only after the aliens arrived in the United States. However, the Court found that based on the evidence, including admissions to an undercover agent, the jury could reasonably infer that Chirino-Alvarez “was involved in the scheme throughout.”
The Court declined to reach Chirino-Alvarez’ challenge to the Guideline computation of his sentence, noting that he was sentenced to a statutory mandatory minimum, and that any error in the Guideline calculation was therefore harmless.
Citing the Ninth Circuit’s en banc decision in U.S. v. Lopez, the Court recognized that the evidence would be insufficient if Chirino-Alvarez’ participation in the alien-smuggling scheme occurred only after the aliens arrived in the United States. However, the Court found that based on the evidence, including admissions to an undercover agent, the jury could reasonably infer that Chirino-Alvarez “was involved in the scheme throughout.”
The Court declined to reach Chirino-Alvarez’ challenge to the Guideline computation of his sentence, noting that he was sentenced to a statutory mandatory minimum, and that any error in the Guideline calculation was therefore harmless.
Friday, August 20, 2010
Kottwitz: Good Faith Reliance Instruction Should Have Been Given
In U.S. v. Kottwitz, No 08-13740 (Aug. 19, 2010), the Court held that the evidence was insufficient to sustain some tax fraud charges, and that a new trial was required on others because the district court denied a special instruction regarding the defendants’ good faith reliance on their accountant’s advice.
The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.
As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.
The Court found that the evidence was sufficient to show that the owners of a closely held corporation fraudulently failed to report to the IRS as personal income moneys received from their corporation to pay for personal expenses, such as suits, night-club visits, and landscaping fees. However, as to this conduct, the district court erred in not failing to give the good faith reliance instruction requested by the defense, because it was supported by evidence that the defendants (1) provided all material information to their accountant, (2) and relied on their accountant’s advice and decisions.
As to other counts of conviction, the Court found no evidence to support them, and therefore vacated those convictions.
Tuesday, August 17, 2010
Newman: Taking Child to Yemen Not "Otherwise Extensive" Offense
In U.S. v. Newman, No. 09-14557 (Aug. 17, 2010), the Court affirmed the imposition of a sentence enhancement under USSG § 2J1.2(b)(2) for “substantial interference with the administration of justice.” Newman was convicted of removing his child outside the United States with the intent to obstruct the other parent’s lawful exercise of parental rights. The enhancement was based on Newman’s “self-help” reaction in response to a state court custody order. The Court rejected the argument that this basis created a “per se rule” that the enhancement would apply in all custody cases where an order has issued. It is the nexus between Newman’s dissatisfaction with the custody determination and his intent to frustrate it, not the order itself, that renders the enhancement applicable.
The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”
The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”
The Court reversed a § 2J1.2(b)(3) enhancement that had been based on a finding that because Newman took the child to Yemen, the offense was “otherwise extensive in scope, planning, or preparation.” The Court noted that nothing in the record supported a finding that Newman took his son to Yemen because it would be difficult to find him there. Rather, the evidence indicated that Newman went to Yemen for “religious and cultural reasons.”
The Court also rejected the argument that the duration of the removal counted as “extensive.” The Court held that “duration” is a separate aspect of an offense from “scope.”
Monday, August 16, 2010
Villarreal: 10-year delay not speedy trial violation
In U.S. v. Villarreal, No. 09-11348 (Aug. 13, 2009), the Court rejected a constitutional speedy trial right challenge to an indictment, and affirmed a 328-month sentence on a defendant convicted of trafficking in more than 10,000 kilograms of marijuana.
The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.
Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.
The Court recognized that because the defendant was arrested ten (10) years after the indictment was filed, the delay was “clearly” presumptively prejudicial. However the Court found that (1) Villarreal engaged in evasive tactics to impede the government’s efforts to arrest him, although this factor did not weigh heavily in the government’s favor because of “gaps in the government’s efforts to locate Villarreal,” (2) Villarreal knew that the government was seeking to arrest and prosecute him for charges stemming from a Florida drug bust, (3) Villarreal failed to show actual prejudice from the delay – he did not show how missing business records would help his case, and the government suffered prejudice in locating witnesses for trial. On balance, the factors weighed against a speedy trial violation.
Turning to sentencing, the Court found that the witnesses who testified about marijuana purchases from Villarreal supported the quantity attributed to him. The evidence also supported a leadership role enhancement, and an enhancement for constructive possession of a firearm. The 328-month sentence fell within the Guideline range and was reasonable.
Monday, August 09, 2010
Jackson: 3582(c)(2) does not encompass safety-valve
In U.S. v. Jackson, No. 08-13645 (Aug. 9, 2010), the Court held that a defendant cannot obtain a safety-valve sentence reduction at a resentencing under 18 U.S.C. § 3582(c)(2).
The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”
The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.
The Court noted that the safety-valve statute references findings “at sentencing.” A § 3582(c)(2) proceeding is not a “sentencing,” but a limited resentencing. The Court noted the policy statements of the Sentencing Guidelines which provided that § 3582(c)(2) resentencings leave other guideline application decisions “unaffected.”
The Court recognized that its holding created a conflict with the contrary decisions of the Eighth and Sixth Circuits, which have held that the safety-valve does apply in § 3582(c)(2) proceedings.
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