McKay: Actual Innocence does not encompass legal claims

In McKay v. U.S., No. 09-15099 (Sept. 22, 2011), the Court held that a career offender could not seek a sentence reduction in a proceeding under 28 U.S.C. § 2255 based on intervening Supreme Court caselaw that made one of his prior convictions no longer qualify as a “crime of violence.” The Court noted that the defendant had failed to challenge the prior conviction in his direct appeal of his sentence. He therefore waived the issue for a future § 2255 motion. The Court rejected the argument that the “actual innocence” exception might excuse the default. The Court held that the “actual innocence” exception applies only to “factual” innocence, not to legal claims. Here, the defendant did not argue that he was innocent of the prior carrying a concealed weapon offense, only that this offense no longer qualified as a “crime of violence.” The Court held that this did not suffice to establish “actual innocence.”

Jayyousi: Terror convictions affirmed; sentence reversed

In U.S. v. Jayyousi, No. 08-10494 (Sept. 19, 2011), the Court affirmed (2-1) the convictions of three defendants for offenses relating to their support for Islamist violence overseas, but vacated the sentence of defendant Padilla.

The Court rejected the argument that the district court erred in admitting under FRE 701 the testimony of an FBI agent about the meaning of code words in conversations among the co-defendants. The Court found that the testimony was based on five years of investigation, and review of thousands of wiretap summaries – it was rationally based on his perception. The Court noted it had “never held that a lay witness must be a participant or observer of a conversation to provide testimony about the meaning of coded language used in the conversation.”

The Court rejected challenges to the sufficiency of the evidence, noting, inter alia, that defendant Padilla was “secretive” about his plans to attend an al-Qaeda training camp, that the conspirators planned for him to travel to fight in “jihad,” and that Jayyousi oversaw the purchase of satellite phones to send to Chechnya to aid in armed conflict.

The Court rejected Padilla’s challenge to the admission of statements he made without Miranda warnings during his interview with FBI agent at Chicago O’Hare airport. The Court noted that questioning at the border must rise to a “distinctly accusatory level” before a person is deemed in “custody.” The Court found that the questioning was not accusatory until one agent accused Padilla of links to a terrorist organization. It rejected the dissent’s contention that the questioning became accusatorial when an agent confronted Padilla about not the telling the truth and about the source and purpose of the money he had failed to declare.

The Court rejected Padilla’s argument that the indictment should have been dismissed because of the outrageous government conduct when he was held in custody as an enemy combatant at a Navy Brig in South Carolina. The Court held that the outrageous government conduct doctrine only applies when the government conduct relates to the defendant’s underlying or charged criminal acts. Padilla’s claim related to mistreatment at the brig after the conclusion of his criminal acts.

The Court rejected co-defendant Hassoun’s argument that the district court should not have excluded a statement that someone other than Hassoun recruited Padilla for jihad. The Court found that the statement lacked the exceptional trustworthiness required under FRE 807 to admit otherwise inadmissible hearsay.

Turning to sentencing, the Court affirmed the district court’s imposition of a Guidelines terrorism sentence enhancement. The Court found that the defendants’ intended outcome was to displace “infidel” government that opposed radical Islamist goals. As to Padilla, however, the Court reversed the district court’s 208 months’ sentence. The Court faulted the district court for failing to adequately reflect Padilla’s criminal history. The district court also failed to account for Padilla’s “heightened risk of future dangerousness due to his al-Qaeda training.” The district court also failed to consider significant distinctions between Padilla and the other offenders the district court referenced. because these offenders pleaded guilty, were convicted of less serious offenses, or lacked extensive criminal histories. Finally, although the district court’s reliance on Padilla’s harsh conditions of pretrial confinement was a valid basis for a sentence reduction, it did not justify a reduction as “extensive” as the one the district court gave Padilla. The Court therefore remanded the case for resentencing.

Valle: 2254 cannot be used to challenge clemency procedures

In Valle v. Sec. Fla. Dep’t of Corrections, No. 11-13962 (Sept. 8, 2011) the Court held that a habeas petition under 28 U.S.C. § 2254 could not be used by an inmate to challenge clemency proceedings. Complaints about clemency procedures may only be brought under 42 U.S.C. § 1983. The Court also denied a stay of execution, finding that Valle had not shown a substantial likelihood of success on his clemency claims.

Shaygan: Hyde Amendment Sanctions Reversed

In U.S. v. Shaygan, No. 09-12129 (Aug. 29, 2011) (2-1) (Edmondson, J., dissenting in part), the Court reversed an award of attorneys’ fees to an acquitted criminal defendant.

The Court noted that under the Hyde Amendment, an award of attorneys’ fees to a criminal defendant is only warranted when a prosecution is “vexatious, frivolous, or in bad faith.” Rejecting the district court’s finding that the Superseding Indictment was filed as a result of a motion to suppress, and therefore in “bad faith,” the Court noted that the Superseding Indictment was filed with the support of newly discovered evidence. The prosecution was therefore “objectively reasonable.” The Court recognized the prosecutor’s threat that a “seismic shift” in the case would occur if the defense filed a motion to suppress, but found that this comment did not establish that the ensuing Superseding Indictment (which added 118 counts to the original indictment) was filed in subjective bad faith; “tough negotiating tactics and harsh words used by prosecutors cannot alone be grounds for a determination of bad faith under the Hyde Amendment.”

The Court also found that the district court violated the rights of the prosecutors when it publically reprimanded them without first affording them due process. The Court pointed out that the district court failed to give the prosecutors notice that it was considering a public reprimand. The prosecutors had no meaningful opportunity to be heard, or to cross-examine any witnesses. The Court remanded the case for further proceedings, and declined to assign the case to a different judge.

[Dissenting, Judge Edmondson argued that “the prosecutor’s personal vindictiveness prominently marked the Government’s [prosecution].” He therefore would have affirmed the attorneys’ fees award.]

Lopez: "Thug Mansion" convictions affirmed

In U.S. v. Lopez, No. 09-12802 (Aug. 16, 2011), the Court affirmed fatal carjacking, drug trafficking, and firearm possession convictions and sentences of four co-defendants.

The Court rejected two drug trafficking co-defendants’ arguments that their trials should have been severed. The Court noted that defendants indicted together are usually tried together, and a defendant will rarely be able to show the requisite “prejudice” to avoid this result. Here, the co-defendants argued that they should not have been tried with co-defendants who were charged with crimes that were subject to the death penalty, but the Court found that this was not a sufficient ground for severance. The Court recognized that the joint trial brought into evidence the fact that two coconspirators had murdered a fellow drug dealer, his wife, and their two young children. But the district court instructed the jury not to consider this evidence against the co-defendants who were not charged with these crimes. In addition, the government presented “compelling evidence” of their guilt, mitigating the effect of “spillover” prejudice.

The Court rejected the argument that the district court, during jury selection, improperly required the co-defendants to agree unanimously on all 20 of their peremptory challenges. The Court noted that a district court is permitted to require co-defendants to agree by majority vote on the use of peremptories. In addition, other Circuits have held that it is not improper to require co-defendants to agree on the exercise of peremptory challenges.

The Court rejected the argument that there was insufficient evidence to support a search warrant of premises known as the “Thug Mansion.” The defendants argued that the passage of time between the murders and the search – 12 days – meant that probable cause had “faded away.” The Court pointed out that the police investigation continued during this period, and the “less-than-a-fortnight time lapse” would not prevent them from believing that evidence would still be found there.

The Court rejected a challenge to the admission of evidence of defendants’ prior drug deals. The evidence was admissible because it provided “context” and established the trust among the parties for the drug transactions that were part of the charged offenses.

Willis: Proper Limitations on 2255 resentencing

In U.S. v. Willis, No. 09-15676 (Aug. 17, 2011), the Court rejected a defendant’s arguments that he should have received additional sentence reductions at a § 2255 resentencing beyond no longer categorizing him as a career offender.

The Court found that Willis was barred from asserting additional ineffective assistance of counsel, because these claims were either waived in his brief, or had not been a subject of a certificate of appealability after being denied by the district court. The Court also found that the district court had properly limited Willis’ § 2255 resentencing, because it declined to review aspects of his sentence that were without error.

The Court also rejected the argument that his statutory right to receive 10-days notice of a PSR prior to (re)sentencing was violated. The Court found that any error was harmless, because the resentencing was limited to striking the career offender enhancement, and the resentencing PSR contained the same information as the original PSR, which Willis had received years earlier.

Barrington: Affirming Convictions for Inflating Grades

In U.S. v. Barrington, No. 09-15295 (Aug. 11, 2011), the Court affirmed convictions and sentences of a defendant convicted of computer fraud and aggravated identity theft in connection with a scheme to inflate grades of students at Florida A & M University.

The Court rejected Barrington’s challenge to the admission of his prior involvement in changing grades, finding the evidence admissible under FRE 404(b) to prove Barrington’s intent to commit the charged offense.

The Court also rejected the argument that Barrington should have been allowed to cross-examine a government witness about his pending state burglary charge, pointing out that this charge was only “marginally relevant,” and that other cross-examination adequately brought out the witness credibility issues.

Reviewing the issue for “plain error,” the Court rejected the argument that inflated grades did not constitute “a thing of value” for purposes of the federal fraud statutes. The Court found that by changing grades from failing to non-failing, the scheme deprived A&M of additional tuition the students would have paid to retake the classes. In addition, the scheme changed the residencies of students, depriving A&M of the higher tuition that would have been paid by non-resident students.

The Court rejected the argument that the passwords of A&M employees were not personal identity information for purposes of aggravated identity theft. The Court noted that the passwords were unique to the employees and allowed them to access the protected grading system.

Turning to Barrington’s 84 month sentence, the Court rejected the contention that the district court improperly drew an adverse inference, and imposed a higher sentence when, after the district court asked “Do you still maintain that you did nothing wrong?” Barrington remained silent. The Court noted that failure to accept responsibility was an appropriate consideration in the determination of the sentence.

The Court rejected a challenge to the calculation of the “loss” amount based on the cost of students of retaking classes that they would have failed, but for the changed, inflated grades. The Court noted that the district court relied on the cost of tuition for the affected credit hours.

The Court also rejected a challenge to a sentence enhancement based on the use of “device-making equipment”and the production of “unauthorized access devices.” The Court found that the use of key loggers to use usernames and passwords to access identifiable student accounts met the statutory definition.

Singletary: Guess not enough to support restitution calculation

In U.S. v. Singletary, No. 09-13892 (Aug. 15, 2011), the Court vacated a $ 1 million restitution order in a mortgage fraud case, because the district court failed to support this order with specific factual findings.

The Court pointed out that, unlike the amount of “loss” under the Sentencing Guidelines, which is determined using the greater of actual loss or intended loss, restitution must be based “on the loss the victim actually suffered.” The Court noted that at sentencing and restitution hearings, the government failed to establish the amount of the mortgage losses to the Federal Housing Authority (“FHA”). Further, the district court stated it might make a “reasonably intelligent guess” of the restitution amount, when in fact it was required to make specific factual findings.

The Court therefore vacated the restitution order and remanded the case for further proceedings. The Court instructed that on remand the government “is not receiving another bite at the apple.” The district court was instructed to calculate restitution based on “the evidentiary record as it now exists.”

Langford: Upholding Bribery Convictions of former Birmingham mayor

In U.S. v. Langford, No. 10-11076 (Aug. 5, 2011), the Court (Marcus, Anderson, Mills b.d.) affirmed the convictions of a former Jefferson County, Alabama County Commissioner, and Mayor of Birmingham.

The Court rejected challenges to the sufficiency of the evidence supporting convictions of using the mail and wires to deprive the public of honest services. The Court found that Langford accepted bribes, which he did not disclose, and used the mails and wires to execute his scheme.

The Court also rejected a challenge to the district court’s refusal to redact the reference to Langford’s “gambling winnings” in his tax returns, noting, inter alia, that one might draw an inference that he was a law-abiding citizen from his dutiful report of these winnings.

The Court also rejected the argument that business records should not have been admitted, because the bank custodian had no personal knowledge of the documents. It sufficed that the custodian could testify that the documents were kept in the regular course of business.

The Court further rejected Langford’s challenge to the district court’s denial of his request for a change of venue. The Court noted that the trial occurred in Tuscaloosa, not in Birmingham or Jefferson County. The Court found no evidence of “rampant pretrial publicity.”

Chavez: Lawyer misconduct not sufficiently egregious to toll

In Chavez v. Sec. Dep’t of Corrections, No. 10-13840 (July 25, 2011), the Court denied habeas relief to a Florida death row inmate because his petition was time-barred under AEDPA.

The Court found that defense counsel, whose delay in filing post-conviction motions caused Chavez’ ultimate federal petition to be untimely (because the one-year limitations period under AEDPA is only statutorily tolled during the period when a State post-conviction proceeding is pending) were merely negligent, and did not engage in the kind of “egregious attorney misconduct” that entitles habeas petitioners to equitable tolling. The Court also found that Chavez’ own lack of diligence in pursuing federal habeas relief precluded a finding of equitable tolling.

Cooper: Counsel's Failure to present mitigating evidence was ineffective

In Cooper v. Sec. Dep’t of Corrections, No. 09-12977 (July 21, 2011), the Court granted habeas relief to a Florida inmate sentence to death for murders committed in 1982, finding that counsel was ineffective for failing to present mitigating evidence at the sentencing phase.

The Court found that counsel were ineffective in talking only to Cooper’s mother and a doctor when conducting a background investigation. The lawyers failed to interview potential witnesses, such as Cooper’s brother or sister, who would have testified about the extent of the abuse Cooper suffered from his father during his youth – testimony that the mother could not provide, because she was away for periods of Cooper’s life when she and Cooper’s father were separated.

Citing the its recent decision in Johnson, the Court found that Cooper was prejudiced by his lawyers’ ineffectiveness: “There was a wealth of mitigating evidence that was not presented.” This evidence would have supported both statutory and nonstatutory mitigators.

Ly: Court must correct pro se defendant's misunderstanding of right to testify

In U.S. v. Ly, No. 09-12515 (July 20, 2011), the Court held that a district court is required to correct a pro se defendant’s obvious misunderstanding of his right to testify. The Court therefore reversed the convictions.

Ly, who represented himself pro se, misunderstood the nature of his right to testify: he did not know that he could testify on direct in narrative form, without being asked questions. The district said nothing to clear up his misunderstanding.

The Court held that where, as here, the district court (1) knew that the defendant had not “knowingly and intelligently” waived the right to testify, and (2) initiated a colloquy with the defendant on whether he would testify and reinforced the defendant’s mistaken view, the district court was required to correct the pro se defendant’s mistaken view.

The Court found that the error was not harmless. Ly “presented nothing” in his defense. “This absence deprived the jury of an alternative narrative.”

Chaplin: $1.8 million forfeiture not excessive

In U.S. v. Chaplin’s, No. 10-10832 (July 13, 2011), the Court rejected an argument that a forfeiture order exceeded the Excessive Fines Clause of the Eighth Amendment.

Chaplin’s was a jewelry store in Atlanta, Georgia, convicted, after a government sting, of money laundering the proceeds of drug trafficking.

At sentencing, the Court imposed a $100,000 fine and ordered forfeiture of $1,877,262. Chaplin’s argued that the forfeiture was unconstitutionally excessive.

The Court noted that a fine is unconstitutionally excessive when it is “grossly disproportional to the gravity of a defendant’s offense.” The Court found that the $1,877, 262 forfeiture was not unconstitutionally excessive. The Court noted that the maximum fine was $1,500,000, and the Guideline range was $650,000 to $1,300,000. Even though Chaplin’s violation involved a government sting, it was a serious money laundering crime, and not an isolated event. The sentencing court stated that it imposed only a $100,000 fine because it had already ordered forfeiture of Chaplin’s jewelry inventory. Though the forfeiture exceeded the statutory maximum fine, the crime was more serious than the conduct in cases where courts found a forfeiture award excessive.

Stewart: 2255 Motion Not "Second or Successive"

In Stewart v. United States, No. 09-15821 (July 14, 2011), the Court held that a § 2255 petition was not “second or successive” under the AEDPA, and should not have been dismissed on this basis.

After being sentenced as a career offender based on past State convictions, Stewart commenced proceedings in Georgia State court seeking to have his prior convictions vacated. While his State proceedings were pending, Stewart filed a first § 2255 motion in federal court, which was dismissed as time-barred. Years later, Stewart succeeded in getting his past state convictions vacated by Georgia State courts. He then filed a second § 2255 petition, attacking his career offender status on the ground that his past state convictions had now been vacated.

The Court held that because the basis for the second § 2255 motion did not exist until the Georgia courts vacated Stewart’s prior Georgia convictions, and because Stewart acted diligently in obtaining vacatur of his Georgia convictions, his second § 2255 motion was not subject to the AEDPA gatekeeping limitations on “second or successive” § 2255 motions.

Borden: Procedural dismiss in habeas is equivalent to adjudication on merits

In Borden v. Allen, No. 09-14322 (July 12, 2011), the Court denied habeas relief to an Alabama death row inmate convicted of 1993 murders.

The Court agreed with Alabama courts that at the State post-conviction stage, Borden failed to adequately allege facts supporting his ineffective assistance of counsel claim at his state trial. The Court found that “nowhere” had Borden pled facts that would tend to show that he was prejudiced by his counsel’s allegedly deficient performance. The Court treated the dismissal by Alabama courts of Borden’s post-conviction proceedings as the equivalent of a determination on the merits, and it deferred to that determination as not unreasonable under AEDPA standards.

Ramierez-Garcia: Taking Indecent Liberties with a minor is a "Crime of Violence"

In U.S. v. Ramirez-Garcia, No. 10-13279 (July 12, 2011), the Court held that a prior State conviction for taking indecent liberties with a minor qualified as a “crime of violence” for purposes of a 16-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

The Guidelines provide that “sexual abuse of a minor” qualifies as a “crime of violence.” The Court noted that its precedent broadly defined “sexual abuse of a minor” as “a perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” The Court rejected Ramirez-Garcia’s argument that it should revisit its definition of “sexual abuse of a minor” and adopt a new, narrower definition, based on a “generic” definition of the crime of “sexual abuse of a minor.” The Court found that coming up with such a generic definition would be difficult because of the variety of sex offense statutes in different States. Instead, the Court relied on the plain meaning of “sexual abuse of a minor,” and noted that the term encompassed conduct, like that covered by the State “taking indecent liberties” statute under which Ramirez-Garcia had been previously convicted.

Conner: No Procedural Bar to Mental Retardation Claim

In Conner v. Hall, No. 10-10928 (July 7, 2011), the Court reversed the denial of habeas relief to a Georgia inmate sentenced to death for a 1982 murder.

The district court had rejected Conner’s challenge to his execution on the grounds of mental retardation because it found that Conner had procedurally defaulted this claim in the Georgia state courts. The Court noted that the procedural default bar only applies to State procedural rules that were consistently applied. The Court found that Georgia did not consistently apply a procedural bar to persons who claimed they were mentally retarded and should not be executed. The Court therefore remanded the case to the district court.

Bradley: Convictions Affirmed in $30 million medicaid fraud

In U.S. v. Bradley, No. 06-14934 (June 29, 2011), in a 195-page opinion the Court reserved some convictions and upheld others in a prosecution involving medicaid fraud in excess of $30 million.

The Court rejected sufficiency of the evidence challenges to the fraud charges. The Court found that there was sufficient evidence that the defendants knew that Medicaid had a policy not to reimburse twice for medications that had been dispensed, and went to great lengths to conceal the fact that the medications for which they obtained reimbursements had been recycled.

The Court also rejected a challenge to venue. The Court found that when a defendant is charged with failure to file a form, venue lies in a district where the form should have been filed, so long as the government’s choice of venue does not create a constitutional hardship. The Court denied another challenge to venue by noting that a defendant is vicariously responsible for the acts of any co-conspirator, and because some acts occurred in the Southern District of Georgia, venue was proper there.

The Court rejected the argument that the seizure of large numbers of computers and hard drives violated the Fourth Amendment, because the warrant that authorized seizure of “all business records” lacked the requisite particularity. The Court held that the “pervasive fraud” doctrine applied, even though the fraud involved a small percentage of the defendants’ business, because the fraud “infected” numerous individuals and businesses, spread amongst a “myriad of records.”

The Court also rejected the argument that the Fourth Amendment was violated when a law enforcement agent ordered employees to shut down the computer servers while a warrant was being obtained, to prevent the employees from erasing data during the period the warrant was obtained. The Court found that the concern about erasure of date created an exigent circumstance that warranted shutting down the servers without a warrant.

The Court rejected the argument that the admission of evidence of defendants’ wealth was unduly prejudicial, in violation of Fed. R. Evid. 403. The Court found the evidence probative of the defendants’ motive, “even if only slightly so.”

The Court recognized that the admission of extrinsic acts as impeachment evidence violated Fed. R. Evid. 404(b), because the government gave no prior notice of its intent to use this evidence. However, the error was harmless.

The Court rejected one defendant’s challenge to the trial court’s exclusion, on hearsay grounds, of the statements of interlocutors in conversations. The Court found that this defendant sought to introduce these statements to show their truth, in violation of the hearsay rule.

The Court found no abuse of discretion in the trial court’s failure to investigate a juror’s report that two other jurors on the fourth day of trial had prejudged the defendants guilty. The Court found that the trial court’s admonition to the jurors to refrain from premature deliberations sufficed, in light of one juror’s subsequent statement about juror impartiality, and the jury’s eventual conviction on some counts and acquittal on others.

The Court found no error in the dismissal of a juror who had taken painkillers to get through back pain during the trial. The Court found that the dismissal was based on the juror’s poor health, not, as the defense contended, because the juror was the “one holdout” in the defendant’s favor.

Turning to sentencing, the Court found that the district court erred in including patients among the number of victims of the defendants’ medicaid fraud. The district court also erred in enhancing the sentence pursuant to U.S.S.G. § 2B1.1(b)(4) because a defendant was a “fence,” when the defendant was “a thief and not a fence.” However, the enhancement errors did not affect one defendant’s sentence, because the Guideline range remained above the statutory maximum sentence the defendant received. The errors did affect another defendant’s sentence, and the Court vacated this sentence because this defendant might have received a lesser sentence.

The Court found that the district court failed, for purposes of determining the applicable guideline to find, beyond a reasonable doubt, which offense two defendants conspired to commit. The Court therefore vacated these sentences.

Finally, the Court reversed the district court’s appointment of a receiver to marshal the assets of the defendant corporations in order to collect restitution. The Court noted that the government’s authority to seize and garnish property, and ability to obtain discovery under the Rules of Civil Procedure, made the extraordinary remedy of appointment of a receiver “inappropriate.”

Jones: Counsel Not Assumed to be ineffective Despite Comment

In Jones v. Sec. Dep’t of Corrections, No. 08-12289 (June 28, 2011), the Court denied habeas relief to a Florida inmate on death row for two 1987 murders.

The Court deferred to the Florida courts’ determination that defense counsel was not ineffective, even after he stated in open court: “I want nothing further to do with [my client].” The Court stated: “We do not – and the law does not – assume that lawyers will fail to do their duty, even when the duty is painful and difficult.”

Ladson: Government failed to strictly comply with 851 notice requirement

In U.S. v. Ladson, No. 10-10151 (June 24, 2011), the Court vacated a sentence of life imprisonment, because the government did not properly serve its 21 U.S.C. § 851 notice of enhanced sentence. The Court noted that § 851 requires the government to both file and serve the notice before trial. The government is required to”strictly comply with the service requirement before trial.”

The district court stated that it remembered that the notice had been served on trial counsel. However, this recollection “was not informed by admissible evidence or testimony.” Nor was it a fact appropriate for judicial notice, as it could not be determined by resort to sources whose accuracy could not be reasonably be questioned.

The emails of trial counsel also did not show that the notice had been served.

Finally, it was error to conclude that an oral summary of the notice read in open court, and the defendant’s actual knowledge of the filing of the notice, were valid substitutes for service of a copy of the § 851 notice.