In U.S. v. Gandy, No 11-15407 (Feb. 27 , 2013), the Court rejected a challenge to the determination that a defendant’s three prior convictions qualified as “violent felonies” for purposes of the mandatory 15-year sentence under the Armed Career Criminal Act (“ACCA”).
The Court rejected the argument that the information and certified judgment of conviction for one Florida prior offense cited only a sentence enhancement provision statute number, not the number of the substantive provision governing “aggravated assault.” The Court noted that the information quoted the text of the aggravated assault statute, and this sufficed.
Citing recent precedent, the Court rejected the argument that simple vehicle flight did not qualify as a “violent felony.” The Court also rejected the argument that the “residual clause” of ACCA is unconstitutionally vague.
The Court also rejected the argument that the sentence was invalid because Gandy was incorrectly advised at his plea hearing that the statutory maximum was 10 years, when in fact he was subject to a 15-year mandatory minimum. The Court noted that at sentencing the district court gave Gandy an opportunity to withdraw his plea, and he declined to do so.
Thursday, February 28, 2013
Tuesday, February 26, 2013
Turner: No ACCA relief for 2255 movant
In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as “violent felonies” for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”).
The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”
The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”
The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”
The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.
[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]
The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”
The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”
The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”
The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.
[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]
Monday, February 25, 2013
Joseph: 30 year sentence for physician who dispense drugs unlawfully
In U.S. v. Joseph, No. 09-11984 (Feb. 21, 2013), the Court affirmed the convictions and sentences of a medical physician and his assistant convicted of dispensing controlled substances to drug abusers and pushers without a legitimate medical purpose and outside the usual course of professional conduct, in violation of 21 U.S.C. § 841(a).
The Court rejected the argument that a jury instruction erroneously instructed the jury to consider whether the defendants acted “in accordance with a standard of medical practice generally recognized and accepted in the United States.” The Court found that this instruction did not suggest that defendants’ actions be evaluated against a single national standard of practice. Instead it required the prosecution to prove that the actions were inconsistent with any accepted standard of professional practice.
The Court rejected the argument that there was no probable cause to support the issuance of a search warrant, pointing out that the 39-page affidavit provided substantial evidence that evidence of crimes would be found including evidence that the physician’s patients died from drugs after he prescribed them.
The Court also rejected a challenge to the admission of testimony that many of the patients either abused their drugs or sold their drugs, rejecting the argument that this evidence was unduly prejudicial.
The Court rejected a substantive reasonableness challenge to the physician’s 30-year sentence, noting that the district court could have imposed a “much more severe sentence.”
The Court rejected the argument that a jury instruction erroneously instructed the jury to consider whether the defendants acted “in accordance with a standard of medical practice generally recognized and accepted in the United States.” The Court found that this instruction did not suggest that defendants’ actions be evaluated against a single national standard of practice. Instead it required the prosecution to prove that the actions were inconsistent with any accepted standard of professional practice.
The Court rejected the argument that there was no probable cause to support the issuance of a search warrant, pointing out that the 39-page affidavit provided substantial evidence that evidence of crimes would be found including evidence that the physician’s patients died from drugs after he prescribed them.
The Court also rejected a challenge to the admission of testimony that many of the patients either abused their drugs or sold their drugs, rejecting the argument that this evidence was unduly prejudicial.
The Court rejected a substantive reasonableness challenge to the physician’s 30-year sentence, noting that the district court could have imposed a “much more severe sentence.”
Friday, February 22, 2013
Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation
In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U.S.C. §§ 545 and 371, failed to state an offense. The Court therefore vacated all convictions and sentences.
The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.
The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.
The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.
The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.
Tuesday, February 19, 2013
Capers: Insufficient foundation for audio recording of drug buy
In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act.
The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.
The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.
The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.
The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.
The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.
The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.
The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.
The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.
Thursday, February 14, 2013
Gibson: No Standing to challenge GPS-search of vehicle
In U.S. v. Gibson, No. 10-15629 (Feb. 14, 2013), the Court held that a defendant had standing to challenge the use of a GPS tracking device to locate a vehicle the defendant possessed – but only when the device was installed, not when the device was later used to seize incriminating evidence while the vehicle was being driven by another person
Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently. A GPS device was installed on the Avalanche without a warrant while it was parked in James Gibson’s driveway. Using the GPS, the police tracked the car making suspicious trips to Ocala, Florida, a “source city for narcotics.” The police stopped the vehicle for a traffic violation. Burton, not Gibson, was driving the Avalanche. Two kilos of cocaine were found inside.
The Court (2-1) held that Gibson lacked standing to challenge the search of Avalanche, because he was not the legal owner of this vehicle, he did not have exclusive custody or control over it, and he was neither a driver or passenger in it at the time it was searched.
Gibson had standing to challenge police testimony, based on the GPS, that Gibson was in a certain location while in possession of the Avalanche. But any error in admitting this evidence was harmless.
The Court rejected the argument that Double Jeopardy was not violated when the district court instructed the jury that it could convict a defendant for his renewed participation in a conspiracy for which he had already been convicted. The Court noted the defendant’s failure to object to this instruction, and the district court’s cautionary instruction to the jury that the defendant was not subject to multiple prosecutions for a single conspiracy. The district court instructed that the defendant liability was limited to acts performed after his first conviction, and this limitation ensured that he was not twice placed in jeopardy for the same conduct.
Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently. A GPS device was installed on the Avalanche without a warrant while it was parked in James Gibson’s driveway. Using the GPS, the police tracked the car making suspicious trips to Ocala, Florida, a “source city for narcotics.” The police stopped the vehicle for a traffic violation. Burton, not Gibson, was driving the Avalanche. Two kilos of cocaine were found inside.
The Court (2-1) held that Gibson lacked standing to challenge the search of Avalanche, because he was not the legal owner of this vehicle, he did not have exclusive custody or control over it, and he was neither a driver or passenger in it at the time it was searched.
Gibson had standing to challenge police testimony, based on the GPS, that Gibson was in a certain location while in possession of the Avalanche. But any error in admitting this evidence was harmless.
The Court rejected the argument that Double Jeopardy was not violated when the district court instructed the jury that it could convict a defendant for his renewed participation in a conspiracy for which he had already been convicted. The Court noted the defendant’s failure to object to this instruction, and the district court’s cautionary instruction to the jury that the defendant was not subject to multiple prosecutions for a single conspiracy. The district court instructed that the defendant liability was limited to acts performed after his first conviction, and this limitation ensured that he was not twice placed in jeopardy for the same conduct.
Tuesday, February 12, 2013
Darden: Conceding guilt not presumed to be ineffective
In Darden v. U.S., No. 10-16640 (Feb. 12, 2013), the Court held that U.S. v. Cronic (1984) does not require a court to presume that a defense counsel’s decision to concede guilt at trial on one of two robbery charges, without consulting the defendant, is ineffective assistance under the Sixth Amendment.
The Court noted that at trial “credibility must never be sacrificed.” This applies when the defendant “faces an unwinnable battle against one set of charges.” Here, Darden’s counsel conceded guilt as to one robbery “for the express purpose of preserving credibility with the jury to focus on” the other, contested, robbery. In addition, Darden vigorously stressed the lack of evidence as to the second robbery. This was not a case of counsel’s “betrayal of his client.”
The Court also found that the failure to consult with the defendant on the strategy of conceding guilt, “while certainly” among counsel’s duties, did not automatically prejudice the defendant.
The Court noted that at trial “credibility must never be sacrificed.” This applies when the defendant “faces an unwinnable battle against one set of charges.” Here, Darden’s counsel conceded guilt as to one robbery “for the express purpose of preserving credibility with the jury to focus on” the other, contested, robbery. In addition, Darden vigorously stressed the lack of evidence as to the second robbery. This was not a case of counsel’s “betrayal of his client.”
The Court also found that the failure to consult with the defendant on the strategy of conceding guilt, “while certainly” among counsel’s duties, did not automatically prejudice the defendant.
Davis: Dismissal of juror "manifestly necessary"
In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013),
the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.
The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.
The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”
the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.
The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.
The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”
Slaughter: No Suppression of statement under Harris
In U.S. v. Slaughter, No. 11-15262 (Feb. 11, 2013), the Court affirmed convictions for use of the internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station. The Court held that the statement need not be suppressed as the fruit of a poisonous entry. The police had probable cause to arrest Slaughter, and gave him his Miranda warnings at the station house. Under these circumstances, New York v. Harris (1990) does not require suppression of the statement.
The Court also rejected the argument that the district court should have severed the count that charged Slaughter as a registered sex offender from the other count. The Court recognized that the evidence that Slaughter was a registered sex offender was “prejudicial,” but the jury had already heard substantial, sexually explicit evidence that he intended to engage in sexual activity with two underage girls, and planned to meet them at a hotel room.
Finally, the Court rejected the argument that Slaughter could not be guilty of committing a felony offense involving a “minor” while being a registered sex offender, because he was not dealing with actual minors, but government agents posing as minors. The Court noted that the statute criminalizes attempts to entice minors, which does not require an actual minor.
The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station. The Court held that the statement need not be suppressed as the fruit of a poisonous entry. The police had probable cause to arrest Slaughter, and gave him his Miranda warnings at the station house. Under these circumstances, New York v. Harris (1990) does not require suppression of the statement.
The Court also rejected the argument that the district court should have severed the count that charged Slaughter as a registered sex offender from the other count. The Court recognized that the evidence that Slaughter was a registered sex offender was “prejudicial,” but the jury had already heard substantial, sexually explicit evidence that he intended to engage in sexual activity with two underage girls, and planned to meet them at a hotel room.
Finally, the Court rejected the argument that Slaughter could not be guilty of committing a felony offense involving a “minor” while being a registered sex offender, because he was not dealing with actual minors, but government agents posing as minors. The Court noted that the statute criminalizes attempts to entice minors, which does not require an actual minor.
Monday, February 11, 2013
In Re Grand Jury Proceedings No. 4-10: Required Records Exemption applies
In In Re: Grand Jury Proceedings, No. 4-10, No. 12-13131 (Feb. 7, 2013), the Court rejected the argument by targets of a grand jury investigation that their Fifth Amendment privilege against self-incrimination shielded their records of foreign bank accounts from production to the government in compliance with a grand jury subpoena. The Court held that these records were exempt from the Fifth Amendment under the Required Records Exemption.
The Court found that, although the purpose of the Bank Secrecy Act and its implementing regulations, which required persons to keep and file reports regarding their relations with foreign financial agencies, was partly in aid of criminal law enforcement, it was “essentially regulatory.” The Court also found that such records are “customarily kept.” Finally, the Court found that the records had “public aspects” which render them analogous to public documents. Consequently, the Required Records Exemption applied, and the target could not invoke the Fifth Amendment as a ground for non-compliance with the grand jury’s subpoena of its records of its foreign bank accounts.
The Court found that, although the purpose of the Bank Secrecy Act and its implementing regulations, which required persons to keep and file reports regarding their relations with foreign financial agencies, was partly in aid of criminal law enforcement, it was “essentially regulatory.” The Court also found that such records are “customarily kept.” Finally, the Court found that the records had “public aspects” which render them analogous to public documents. Consequently, the Required Records Exemption applied, and the target could not invoke the Fifth Amendment as a ground for non-compliance with the grand jury’s subpoena of its records of its foreign bank accounts.
Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range
In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.
The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.
The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.
The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.
Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.
The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.
The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.
The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.
Tuesday, February 05, 2013
Penney: 3.800 Motion not properly filed
In Penney v. Sec., Dep’t of Corrections, No. 10-14628 (Feb. 5, 2013), the Court held that a federal habeas petition was untimely because it was filed after the one-year limitations period under AEDPA.
The Court noted that the one-year period is tolled while a state prisoner has a “properly filed” state post-conviction motion pending in state court. Penney had filed a post-conviction motion under Fla. R. Crim. P. 3.800(c). The Court recognized that a Rule 3.800(c) motion might toll the AEDPA limitations period, but found that Penney had untimely filed this motion in Florida court, and it was therefore not “properly filed.” As a result, his federal petition was now untimely, because filed after the one-year AEDPA period expired.
The Court noted that the one-year period is tolled while a state prisoner has a “properly filed” state post-conviction motion pending in state court. Penney had filed a post-conviction motion under Fla. R. Crim. P. 3.800(c). The Court recognized that a Rule 3.800(c) motion might toll the AEDPA limitations period, but found that Penney had untimely filed this motion in Florida court, and it was therefore not “properly filed.” As a result, his federal petition was now untimely, because filed after the one-year AEDPA period expired.
Friday, February 01, 2013
Fordham:Skilling Not basis for invaliding bribe scheme
In Fordham v. U.S., No. 12-10299 (Jan. 31, 2013), the Court rejected a § 2255 challenge to convictions for defrauding a mental health center.
The defendants argued that their convictions should be vacated in light of Skilling v. U.S., 130 S.Ct. 2896 (2010), which limited “honest-services fraud” under 18 U.S.C. § 1346 to cases involving bribes and kickback schemes and not mere undisclosed self-dealing, or conflicts of interest.
The Court found that the defendants defaulted these claims by failing to raise them in the district court or on direct appeal of their convictions. The Court rejected the argument that the default could be cured because of “actual prejudice.” The Court found that the sporadic references at trial to “honest services,” and a single jury instruction on this now invalid theory, did not suffice to show prejudice. The record demonstrated that the jury was presented with evidence that they participated in a scheme involving the payment of bribes.
For the same reason, the Court rejected the argument that the defendants were “actually innocent.”
The defendants argued that their convictions should be vacated in light of Skilling v. U.S., 130 S.Ct. 2896 (2010), which limited “honest-services fraud” under 18 U.S.C. § 1346 to cases involving bribes and kickback schemes and not mere undisclosed self-dealing, or conflicts of interest.
The Court found that the defendants defaulted these claims by failing to raise them in the district court or on direct appeal of their convictions. The Court rejected the argument that the default could be cured because of “actual prejudice.” The Court found that the sporadic references at trial to “honest services,” and a single jury instruction on this now invalid theory, did not suffice to show prejudice. The record demonstrated that the jury was presented with evidence that they participated in a scheme involving the payment of bribes.
For the same reason, the Court rejected the argument that the defendants were “actually innocent.”
Wednesday, January 30, 2013
McGuire: Upholding Conviction and Sentence for firing at a helicopter
In U.S. v. McGuire, No. 11-12052 (Jan. 30, 2013), the Court rejected a sufficiency of the evidence challenge to a conviction for violating 18 U.S.C. § 32(a)(1) by firing a single shot from a handgun in the general direction of an airborne police helicopter.
McGuire admitted that a witness testified that he saw McGuire shoot a pistol skyward right toward the spotlight where a helicopter orbited. The Court noted McGuire’s argument that he was distraught over losing his girlfriend and his job, and wasn’t really aiming at the helicopter, but concluded that this was for the jury to decide.
The Court also held that a violation of 18 U.S.C. § 32(a)(1) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 924(c). The Court noted that even if the conduct was merely attempting to disable an aircraft, it “still involves an intentional act against another’s property that is calculated to cause damage and that is exacerbated by indifference to others’ wellbeing.”
McGuire admitted that a witness testified that he saw McGuire shoot a pistol skyward right toward the spotlight where a helicopter orbited. The Court noted McGuire’s argument that he was distraught over losing his girlfriend and his job, and wasn’t really aiming at the helicopter, but concluded that this was for the jury to decide.
The Court also held that a violation of 18 U.S.C. § 32(a)(1) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 924(c). The Court noted that even if the conduct was merely attempting to disable an aircraft, it “still involves an intentional act against another’s property that is calculated to cause damage and that is exacerbated by indifference to others’ wellbeing.”
Monday, January 28, 2013
Jimenez: Conflict of Interest alone is insufficient to misapply funds
In U.S. v. Jimenez, No. 11-15039 (Jan. 25, 2013), the Court held that the evidence was insufficient to support a conviction for violating 18 U.S.C. § 666 by intentionally misapplying $5,000 or more from an organization receiving federal funds.
Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida. During his tenure, the program paid $9,000 to the defendant’s wife to order 750 copies of her book entitled Travel Boy Helps Sebastian Trapping the Germs. It was not Jimenez, but Mason, Jimenez’s superior, who directed the payment of funds. Jimenez failed to complete the required “conflict of interest” disclosure form indicating that his wife had a contractual relationship with Head Start.
The government argued that Jimenez’s skirting of conflict of interest rules established a § 666 violation. The Court rejected this argument. The Court pointed out that the statute makes it unlawful to intentionally misapply funds. Here, it was not Jimenez, but his superior, Mason (who was also charged – and acquitted – of a § 666 violation), who directed the application of funds. The Court held that an undisclosed conflict of interest, standing alone, is insufficient to sustain a § 666 violation.
Jimenez was Deputy Director of a Head Start program in Hillsborough County, Florida. During his tenure, the program paid $9,000 to the defendant’s wife to order 750 copies of her book entitled Travel Boy Helps Sebastian Trapping the Germs. It was not Jimenez, but Mason, Jimenez’s superior, who directed the payment of funds. Jimenez failed to complete the required “conflict of interest” disclosure form indicating that his wife had a contractual relationship with Head Start.
The government argued that Jimenez’s skirting of conflict of interest rules established a § 666 violation. The Court rejected this argument. The Court pointed out that the statute makes it unlawful to intentionally misapply funds. Here, it was not Jimenez, but his superior, Mason (who was also charged – and acquitted – of a § 666 violation), who directed the application of funds. The Court held that an undisclosed conflict of interest, standing alone, is insufficient to sustain a § 666 violation.
Thursday, January 24, 2013
Grim: Statute adequately notifies defendants of death penalty aggravators
In Grim v. Sec. Fla. Dep’t of Corrections, No. 11-11890 (Jan. 22, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 1998 murder.
The Court rejected the argument that the indictment was defective because it failed to set forth the aggravating factor that was relied on as the basis for the imposition of a death sentence. The Court noted that the Fifth Amendment Indictment Clause is not applicable to the States.
The Court rejected the argument that the sentence was invalid because the jury was not required to find an aggravating factor beyond a reasonable doubt. The Court pointed out that the Florida Supreme Court had found that the jury unanimously found two aggravating factors, and recommended that the defendant be sentenced to death. The Court noted that it had recently held that a system of advisory jury verdicts does not violate the Sixth Amendment.
Finally, the Court rejected the argument that the indictment should have given the defendant notice of the aggravating factors it would rely on in obtaining the death penalty. The Court noted the Florida Supreme Court’s holding that the aggravating factors set forth in Florida’s death penalty statute notify defendants of the factors that support the death penalty, and no United States Supreme Court case has addressed this issue.
The Court rejected the argument that the indictment was defective because it failed to set forth the aggravating factor that was relied on as the basis for the imposition of a death sentence. The Court noted that the Fifth Amendment Indictment Clause is not applicable to the States.
The Court rejected the argument that the sentence was invalid because the jury was not required to find an aggravating factor beyond a reasonable doubt. The Court pointed out that the Florida Supreme Court had found that the jury unanimously found two aggravating factors, and recommended that the defendant be sentenced to death. The Court noted that it had recently held that a system of advisory jury verdicts does not violate the Sixth Amendment.
Finally, the Court rejected the argument that the indictment should have given the defendant notice of the aggravating factors it would rely on in obtaining the death penalty. The Court noted the Florida Supreme Court’s holding that the aggravating factors set forth in Florida’s death penalty statute notify defendants of the factors that support the death penalty, and no United States Supreme Court case has addressed this issue.
Thursday, January 17, 2013
Hall: Transfer of identity is not "use"
In U.S. v. Hall, No. 11-14698 (Jan. 16, 2013), the Court held that the district court erroneously found that the offense involved more than 50 victims and therefore erroneously applied the four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B).
Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.
The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:
The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.
Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.
Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.
The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:
The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.
Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.
Friday, January 11, 2013
McIntosh: Indictment unnecessary to sustain sentence
In U.S. v. McIntosh, No. 10-15894 (Jan. 7, 2013),
the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).
The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”
The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.
Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”
the Court held that the dismissal of an original indictment did not result in the district court’s loss of jurisdiction over a guilty plea entered before dismissal of the indictment. The Court noted that only an indictment’s failure to describe conduct proscribed by a federal statute is a jurisdictional defect. McIntosh’s original indictment did not suffer from this kind of defect (it alleged the wrong date for the commission of the offense).
The Court rejected the argument that because the indictment had been dismissed prior to sentencing, the sentencing violated the Fifth Amendment’s Grand Jury Clause, which provides that a person shall not “answer for” a crime unless indicted. The Court found that once a defendant has been convicted, the indictment no longer serves a function. “An indictment defect that exists only after a conviction is, at most, a technical defect because it has no bearing on the substantive fairness of the conviction or the process by which it was obtained.”
The Court rejected the argument that allowing a district court to proceed with sentencing after the indictment had been dismissed usurped on the Executive Branch’s sole authority to bring cases. The Court noted that the prosecutor retained the power to unequivocally terminate cases by moving to vacate convictions.
Turning to sentencing, the Court agreed with both McIntosh and the government that he should be resentenced in accordance with the Fair Sentencing Act’s revised penalty provisions, because he was sentenced after the FSA took effect. “The FSA’s revised penalties apply to defendants sentenced after the FSA’s effective date, even if their offenses occurred prior to that date.”
Friday, January 04, 2013
Garcia-Sandobal: Disorderly Intoxication Counts as Criminal History
In U.S. v. Garcia-Sandobal, No. 11-12196 (Jan. 3, 2013), the Court held that a prior conviction for “disorderly intoxication,” in violation of Fla. Stat. § 856.011, counts for purposes of increasing a defendant’s criminal history category under the Sentencing Guidelines.
Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.
The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”
The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”
Garcia-Sandobal pled guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(b)(2). The Court rejected Garcia-Sandobal’s argument that he had not committed a “crime of violence” prior to his illegal re-entry, noting that during his plea colloquy Garcia-Sandobal unequivocally pleaded guilty to violating § 1326(b)(2), thereby waiving his right to appellate review of this issue.
The Court rejected the argument that Garcia-Sandobal’s prior conviction for disorderly intoxication should not have caused a two point increase in his Guidelines criminal history score. Applying the Guidelines’ five-factor “common sense approach” to this issue, the Court noted that the Florida offense carried a maximum penalty of 60 days in jail, and Garcia-Sandobal was initially sentenced to 50 days, and then an additional 60 days when probation was revoked. “It is difficult to imagine a scenario where an individual spends nearly one-third of a year in jail for endangering the public or causing a disturbance, yet his conviction is not considered serious enough to count toward his criminal history score.”
The Court emphasized that under Florida law, as opposed to the law in other states, disorderly intoxication “requires proof that the defendant endangered someone or created a public disturbance.” The Court also noted Garcia-Sandobal’s underlying conduct: “someone who gets drunk and walks in the middle of a public road at 2:36 a.m., nearly causing a collision with an oncoming vehicle, engages in conduct that suggests the likelihood of recurring criminal conduct.”
Thursday, January 03, 2013
Petite: Any Intentional Vehicle Flight is a "Violent Felony"
In U.S. v. Petite, No. 11-14996 (Jan. 3, 2013), the Court, relying on Sykes v. U.S., 131 S.Ct. 2267 (2011) and overruling U.S. v. Harrison, 558 F.3d 1280 (11th Cir. 2009), held that a prior conviction for intentional vehicular flight from an authorized law enforcement patrol car, in violation of Fla. Stat. § 316.1935(2), qualifies as a “violent felony” for purposes of the higher mandatory minimum punishment for convicted felons under the Armed Career Criminal Act (“ACCA”).
The Court noted that Sykes involved a “strikingly similar” Indiana vehicular flight statute, in which the Supreme Court held that because of the inherent risk in vehicular flight, the offense qualified as a “violent felony.” The Court noted that Sykes had “sharply curtailed” the reach of cases like Begay, by determining that the requirement of “purposeful, violent and aggressive” conduct “no longer applies to intentional crimes like vehicle flight.
The Court rejected the argument that Sykes could be distinguished because, unlike Florida, Indiana did not have a “gradient of penalties for different levels of vehicle flight.” Although Sykes left “for another day” the issue of how escalating tiers of punishment might affect the analysis, the Court found “little meaningful distinction” in the existence of a gradient of offenses. The Court found that any intentional flight “provokes a dangerous confrontational response” from police, which creates the “serious risk” of injury that qualifies an offense as a “violent felony” under ACCA.
The Court noted that Sykes involved a “strikingly similar” Indiana vehicular flight statute, in which the Supreme Court held that because of the inherent risk in vehicular flight, the offense qualified as a “violent felony.” The Court noted that Sykes had “sharply curtailed” the reach of cases like Begay, by determining that the requirement of “purposeful, violent and aggressive” conduct “no longer applies to intentional crimes like vehicle flight.
The Court rejected the argument that Sykes could be distinguished because, unlike Florida, Indiana did not have a “gradient of penalties for different levels of vehicle flight.” Although Sykes left “for another day” the issue of how escalating tiers of punishment might affect the analysis, the Court found “little meaningful distinction” in the existence of a gradient of offenses. The Court found that any intentional flight “provokes a dangerous confrontational response” from police, which creates the “serious risk” of injury that qualifies an offense as a “violent felony” under ACCA.
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