Brester: No Brady violation in failure to disclose plea agreement loss provisions

In U.S. v. Brester, No. 13-15311 (May 20, 2015), the Court held that because Brester was not prejudiced by the failure to disclose his cooperating co-conspirators’ plea agreement provisions limiting their loss amount for sentencing purposes, this non-disclosure did not violate Brester’s rights under Brady v. Maryland. Turning first to the question of whether it had jurisdiction to review the district court’s denial of Brester’s motion for a new trial, the Court noted that Brester had failed to file a second notice of appeal from the denial of this motion. Although the “better practice” is to perfect a separate appeal from the denial of a motion for a new trial, when the government is not prejudiced – here, it briefed the issue on appeal – the Court has jurisdiction. Next addressing the merits, the Court found that the loss amount limitation of the co-conspirators’ plea agreements would merely have been cumulative impeachment evidence, which does not establish “prejudice” under Brady. The Court noted these co-conspirators' admissions, on cross-examination, of their motivation for their testimony against Brester.

Siegelman: Affirming 78-month sentence for former Alabama Governor

In U.S. v. Siegelman, No. 12-14373 (May 20, 2015), the Court affirmed the denial of a motion for a new trial, and the 78-month sentence, imposed at resentencing, of the former Alabama Governor convicted of fraud. Relying on the “law of the case” doctrine, the Court rejected Siegelman’s claim the U.S. Attorney continued to be involved in his prosecution after her disqualification based on conflict of interest. The Court noted that it had already rejected this argument when raised by a co-defendant, ruling that while the law categorically prohibits an interested person from controlling a defendant’s prosecution, it does not forbid an interested person from having any involvement in the prosecution. As to his sentence, Siegelman argued that the district court failed to explain why it treated certain transactions as part of “relevant conduct.” Because Siegelman did not object to the district court’s failure to explain why these transactions qualified as “relevant conduct,” the Court reviewed the issue for “plain error.” The Court found no plain error, because it was clear from the record that, even though the district court made no explicit finding, its loss calculations had relied on specific transactions. The Court also rejected the argument that the transactions should not have qualified as “relevant conduct.” The Court found a substantial connection with the bribery offense of conviction, because there was a common accomplice, a common victim (the citizens of Alabama), a common purpose (power and money), and a similar modus operandi.

Rosin: Evidence Contradicted Ineffective Assistance of Counsel Claim

In Rosin v. U.S., No. 14-10175 (May 14, 2015), the Court affirmed the denial of an evidentiary hearing to a defendant convicted of health care fraud who claimed in a § 2255 petition that his lawyers were ineffective for grossly underestimating the sentence Rosin would receive and failing to pursue a plea bargain. The Court noted that Rosin’s lawyers filed affidavits stating that he professed his innocence and insisted on going to trial. While testifying at trial, Rosin blamed others for his plight. At sentencing, Rosin did not accept personal responsibility for the conduct alleged. Thus, the record evidence contradicted Rosin’s claim that he would have accepted a guilty plea and not insisted on going to trial but for trial counsels’ alleged error.

Keelan: Restitution for Mental Health Treatment Expenses

In U.S. v. Keelan, No. 13-11878 (May 13, 2015), the Court affirmed an order of restitution for mental health treatment expenses imposed on a high school teacher convicted of unlawful enticement of a minor in sexual activity, in violation of 18 U.S.C. § 2422(b). The Court rejected the argument that the § 2422(b) violation was not a “crime of violence” for which restitution could be ordered. In cases involving sex crimes against minors “there is always a substantial risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.” The Court noted that the defendant failed to raise below the argument that there was no “bodily injury,” and therefore found no “plain error.” The Court rejected the argument that mental health treatment expenses were not subject to restitution, noting the statute’s reference to “psychological care.” Finally, the Court rejected the argument that the defendant’s conduct did not cause the mental health treatment, agreeing with the district court that there was “no doubt” they were.

Quartavious Davis: No expectation of privacy in cell tower location information

In U.S. v. Quartavious Davis, No. 12-12928 (May 5, 2015) (en banc) (9-2), the Court held that no Fourth Amendment violation occurred when a court order, authorized by the Stored Communications Act, 18 U.S.C. § 2703(d), compelled a telephone company to produce records containing cell tower location information related to Davis’ cell phone. The Court noted that the Supreme Court in U.S. v. Miller and Smith v. Maryland held that individuals have no reasonable expectation of privacy in bank records, or dialed telephone numbers, because these records are maintained by a third-party business. Analogizing to these cases, and relying on a recent Fifth Circuit case, the Court found that cell tower location information is held by a third-party, not by the individual, and the individual therefore has no reasonable expectation of privacy in these records. The Court noted that unlike U.S. v. Jones, the case did not involve any surreptitious physical intrusion on the defendant’s private property. The Court also noted that cell tower information is less informative than the GPS tracking at issue in Jones. The Court also noted that there was “no overhearing or recording of any conversations.” [Judge Pryor, concurring, stated: “If a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call.”] [Judges Jordan and Rosenbaum, separately concurring, noted concerns that more protection might be needed in the future as location information from cell phones become more precise.] [Judges Martin and Jill Pryor, dissenting, found the third-party doctrine inapposite, noting that if applicable, it would eliminate expectations of privacy in email accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.].

Preston: No habeas relief for 1978 murder

In Preston v. Sec., Fla. Dep’t of Corrections, No. 12-14706 (April 29, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder. The Court found that Preston was procedurally barred from raising his federal sufficiency of the evidence claim, because he failed to raise that claim before the Florida Supreme Court. The Court found that Preston merely claimed that the evidence was insufficient under Florida law, which has a different sufficiency standard than federal law. The Court added that the sufficiency claim would not have merit, because premeditated murder could be inferred from the victim’s brutal wounds, and other evidence.

Ford: Mail Fraud and Filing False Claims not Multiplicitous

In U.S. v. Ford, No. 14-10381 (April 28, 2015), the Court affirmed the convictions and sentence of a defendant charged with mail fraud, aggravated identity theft, and filing false tax refund claims with the Internal Revenue Service. The Court rejected Ford’s multiplicity challenge to the indictment, explaining that it was not multiplicitous to charge both mail fraud and filing false claims. The Court pointed out that mail fraud involved use of the mails, while filing false claims did not. Also, filing false claims involves an agency of the United States, while mail fraud does not. The Court rejected Ford’s argument that the admission of evidence of past conduct violated Rule 404(b). The Court explained that much the past conduct was “inextricably intertwined” with the charged offenses, and therefore fell outside the scope of Rule 404(b). Turning to sentencing, the Court rejected the argument that the enhancement for the number of victims did not apply. The Court noted that the limitation for aggravated identity theft offenses applied only to the “transfer, possession, or use of a means of identification” – not, as here, to the number of victims. In addition, the limitation did not apply to the mail fraud convictions of which Ford stood convicted, in addition to aggravated identity theft.

Creel: No mens rea required for "distribution" enhancement for child pornography

In U.S. v. Creel, No. 14-12438 (April 21, 2015), the Court held that the 2-level “distribution” enhancement of U.S.S.G. § 2G2.2(b)(3)(F) does not include a mens rea element, and affirmed the 84-month sentence imposed on a defendant convicted of receipt of child pornography. Creel objected to the “distribution” enhancement on the ground that he did not know that other users of the peer-to-peer file sharing program could access the child pornography that he had downloaded to his computer. The Court found that the plain language of the Guideline commentary did not require knowledge. The Court pointed out that the commentary defined “distribution to a minor” as “knowing” distribution. The Court found that the fact that one definition included a mens rea and the other definition did not implied that no mens rea was required in the other one. The Court cited like holdings of two other circuits, and acknowledged conflict with the holdings of four other Circuits.

Hill: Guideline commentary inconsistent with computer use guideline

In U.S. v. Hill, No. 14-13383 (April 17, 2015), the Court affirmed the imposition of the two-level enhancement for use of a computer to solicit a person to engage in unlawful sexual activity with a minor, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), holding that the Guideline commentary was inconsistent with the Guideline and therefore did not govern the application of the enhancement. Hill pled guilty to conspiracy to engage in sex trafficking of minors. The Guidelines provide for a two-level enhancement if a defendant used a computer to “solicit a person to engage in prohibited sexual conduct with a minor.” The Guideline commentary, however, states that the enhancement applies only to use of a computer to communicate with a minor or a person exercising custody of the minor. Here, Hill used a computer for online ads offering minor girls for sex. Joining other Circuits to have so held, the Court held that the Guideline commentary’s limitation was inconsistent with the Guideline, and therefore not binding. The Court noted that the inconsistency was the result of a drafting error. Because Hill used his cellphone (which qualified as a “computer”) to place online ads, and his actions therefore fell “squarely within the language of the enhancement.”

Conner: Georgia Death Row inmate not intellectually disabled

In Conner v. GDCP Warden, No. 13-13928 (April 15, 2015), the Court affirmed the denial of habeas relief to a Georgia death-row inmate who claimed that he was intellectual disabled and therefore not subject to the death penalty. The Court held that the district court did not err, after holding an evidentiary hearing, in finding that Conner was not intellectually disabled. The Court noted the district court’s finding that Conner’s IQ hovered around 80, and otherwise did not have the lack of intellectual functioning, or lack of adaptive skills, associated with the intellectually disabled. Turning to Conner’s ineffective assistance of counsel claim, the Court noted that Conner himself instructed his lawyer at the sentencing phase not to present mitigation evidence. The Court found no support for that he would have allowed trial counsel to present mitigation evidence, and his willingness to do so at postconviction proceedings did not, without more, suffice. During the guilt phase of Conner’s trial, the prosecutor told the jury that he had practiced criminal law for seven years, that as district attorney he had prosecuted nine murder cases, but he had never sought the death penalty until Conner’s case. Conner’s counsel objected, and the trial court gave a curative instruction. The Georgia Supreme Court found the remark improper, but did not compel reversal. The Court did not find this resolution of this issue contrary to well-established law.

Albury: Sufficient evidence to support probable cause independent of unlawful search

In U.S. v. Albury, No. 12-15183 (April 9, 2015), the Court affirmed drug trafficking convictions rejecting a Fourth Amendment challenge to the search of a hotel room. The Court acknowledged that a search warrant was based in part on a search that violated the Fourth Amendment. But the Court found that independent of the unlawful search, the affidavit contained sufficient evidence to support a finding of probable cause. Albury had resided in a room at the hotel, prior to moving to another room where the unlawful search occurred. Inside the vacated room, the police found cocaine powder residue, two cookies of crack cocaine and baggies with cocaine residue. This information provided probable cause to search the new room, and the testimony that the police supervisor would have sought a warrant to search this room even without the information from the unlawfully searched room showed a warrant would have been sought even without the unlawful entry. The Court also rejected Albury’s challenge to the sufficiency of the evidence, finding that he exercised control over both hotel rooms in which contraband was found. He was the only guest renting the rooms, and the only person whose personal effects were found inside.

Asante: Affirming Gun Trafficking and Exporting Enhancements

In U.S. v. Asante, No. 13-15651 (April 6, 2015), the Court affirmed the imposition of firearms sentence enhancements. The Court rejected Asante’s challenge to the four-level enhancement, under USSG § 2K2.1(b)(5), for a firearms offender “engaged in the trafficking of firearms,” claiming there was no evidence that he knew his conduct would result in another’s unlawful possession, use or disposal of the firearms. The Court acknowledged that the government failed to show that Asante knew that the firearm would be transferred to individual with prior convictions. But the enhancement applied on the alternative ground that the firearms would be transferred to a person who would use them unlawfully. The Court found this could be inferred from the fact that Asante knew the firearms would be hidden in cars that were being shipped to Jamaica. The Court also rejected Asante’s challenge to the imposition of a four-level enhancement, under USSG § 2K2.1(b)(6)(A), for exporting firearms. Again, the fact that Asante knew the guns would be smuggled to Jamaica supported this enhancement. The Court rejected the argument that the imposition of both enhancements constituted “double counting.” The Court noted that knowing a firearm will be transferred to someone for unlawful use, and for export, are conceptually distinct. Finally, the Court rejected the argument that the district court should have redacted information from the PSI about threats Asante made, in a phone conversation from jail to his wife, against the prosecutor and the magistrate judge. Even if the rules do not require this information to be contained in the PSI, the district court had discretion to include it.

Alexander: Affirming conviction for selling cutting machines to Iran companies

In U.S. v. Alexander, No. 14-10253 (April 7, 2015), the Court affirmed a conviction for conspiring to sell cutting machines to companies in Iran, in violation of the International Emergency Economic Powers Act, 50 U.S.C. § 1705. The Court found that the district court did not abuse its discretion in denying Alexander’s request to take the deposition of a witness whose proposed testimony was “immaterial or cumulative.” In addition, one profered statement would have hearsay. And the witness was a fugitive from justice. The Court also found that the district court did not abuse its discretion in denying a motion for a mistrial after a juror complained that supporters of the defendant momentarily blocked her car in the parking lot. No one communicated with the juror, and the district court instructed the jury that there was no certainty who the people were, or had anything to do with the trial. The jury affirmed that they could remain impartial. Finally, the district court did not error when it explained to the jury, during the testimony of a witness, the legal standard for conspiracy, because the district court was not commenting on the evidence but clarifying the law. The district court also did not err when it explained the limited purpose of admitting testimony – credibility of witnesses – about a “feud” between Alexander and his business partners.

Dimitrovski: One-time event can involve ongoing, sophistidcated operation

In U.S. v. Dimitrovski, No. 14-12417 (April 2, 1015), the Court affirmed the imposition of a two-level enhancement under USSG § 2B1.1(b)(14)(B), which applies “if the offense involved an organized scheme to steal or to receive . . . goods or chattels that are part of a cargo shipment.” Dimitrovski argued that the enhancement should not apply because it was intended for an ongoing, sophisticated operation analogous to a “chop shop,” not to a one-time event where a defendant attempts to resell stolen items. Rejecting the argument, the Court found an “organized, ongoing, and sophisticated operation. The defendant purchased a stolen cargo, loaded it onto one of his trailers, and in one day’s time had it shipped to Miami. He was a “savvy” businessman in negotiating the price over several days, and wore latex gloves to conceal his activities. Dimitrovski told the informant that he could bring more loads in the future. “An offense may involve an ongoing, sophisticated operation even if it is committed only once.”

Sosa: Defendants knew of government cooperator

In U.S. v. Sosa, No. 13-14141 (April 3, 2015), the Court rejected the argument of Medicare fraud defendants that their guilty pleas were not voluntary because the government did not disclose until sentencing that the government could have stopped the fraud, but instead allowed the loss to grow for months with the participation of a government cooperator. Had they known of the government’s inaction, the defendants would have contested the amount of forfeiture. Rejecting this argument, the Court found that the defendants “knew that the doctor involved in their four-month long conspiracy was a government cooperator.” Defendants also claimed that the plea agreement only agreed to forfeiture of two houses, not cars. The Court found that placed in context, the agreements did not state that the house-forfeiture would fully satisfy the money judgment.

Symington: If agreed sentence is illegal, district court lacks authority to impose it

In U.S. v. Symington, No. 14-10482 (March 25, 2015), the Court held that the district court abused its discretion when it denied the defendant’s request to withdraw his guilty plea, when the plea agreement mistakenly stated that he would not be subject to the 15-year mandatory minimum of 18 U.S.C. § 924(e) (ACCA), and the district court so advised him at the plea colloquy. When the parties entered into the plea agreement, they mistakenly believed that Symington’s prior conviction for fleeing and eluding was a misdemeanor, not a felony, and he therefore did not qualify for ACCA’s 15-year mandatory minimum for offenders with three prior convictions. The district court told Symington at his plea colloquy that he was subject to a 10-year maximum. However, the PSI later determined that the prior fleeing and eluding conviction was a felony, and that Symington therefore qualified for ACCA’s 15-year mandatory minimum. Symington moved to withdraw his plea, but the district court denied this request – and imposed a 15-year sentence. The Court rejected Symington’s argument that he was entitled to specific performance of his plea agreement – a 10-year maximum sentence. The Court noted that because of ACCA’s mandatory 15-year minimum, a 10-year sentence would be “illegal”; “the district court lacked the authority to impose the unlawful sentence contained in the plea agreement.” The Court, however, agreed with Symington that he should be permitted to withdraw his plea, and vacated his judgment with directions to the district court that it permit Symington to withdraw his plea.

Jenkins: Adjudication withheld "conviction" certified to Florida Supreme Court

In U.S. v. Jenkins, No. 13-15874 (March 17, 2015), the Court certified to the Florida Supreme Court the question whether, under Florida law, a guilty plea for a felony for which adjudication was withheld qualifies as a “conviction.” Jenkins’ conviction for being a felon in possession of a firearm depended on whether his prior guilty plea with adjudication withheld to the Florida offense of possession of cocaine qualified as “conviction” under 18 U.S.C. § 922(g). The Court recognized its own prior precedent holding that a prior Florida conviction with adjudication withheld qualified as a conviction, but also recognized contrary indications from two lower appellate courts in Florida, and from language in Florida Supreme Court decisions. Faced with “conflicting commands,” the Court certified the legal question to the Florida Supreme Court.

Edmond: Vacating conviction where plea agreement based on unindicted crime

In U.S. v. Edmond, No. 13-14381 (March 16, 2015), the Court, on plain error review, reversed a conviction obtained pursuant to a plea agreement. The indictment charged Edmond with access device fraud and with aggravated identity theft. Edmond entered into a plea agreement. The plea agreement, however, incorrectly described the Count as to which Edmond agreed to plead guilty (it referred to a conspiracy offense, when the indictment referenced a possession offense), and misstated the statutory maximum penalty. The error that Edmond pled guilty to a crime for which he was not indicted was not discovered until after oral argument on appeal. The Court held that there was “plain error.” The district court violated Edmond’s constitutional rights by accepting a guilty plea for a crime not charged in the indictment. Because Edmond was now serving a sentence for this erroneous conviction, the error clearly affected the outcome of the proceedings.

Hollis: Protective sweep justifies search

In U.S. v. Hollis, No. 13-13780 (March 12, 2015), the Court held that evidence was discovered in plain view during a protective sweep incident to an arrest, and therefore rejected the defendant’s Fourth Amendment challenge. Without addressing the government’s argument that Hollis, as a mere “guest” in another’s apartment, had no expectation of privacy, the Court found that the search of the apartment was incident to Hollis’ arrest and a valid attempt to ensure that the apartment did not contain other dangerous persons. Here, the police had been told that the apartment was a “drug house,” and could draw the rational inference that persons inside might be armed. The police found drugs in plain view during the protective sweep, and this evidence was admissible. The Court also found no error in the district court’s decision that a proffered defense expert lacked the necessary expertise to testify about the sufficiency of a latent fingerprint, noting the witness’s lack of qualification in fingerprint comparison.

Rivera: Statements incapable of being true or false are not hearsay

In U.S. v. Rivera, No. 13-13125 (March 12, 2015), the Court affirmed convictions for murder for hire in violation of 18 U.S.C. § 1958. The Court rejected the argument that the statements by a third person – the wife of the hit-man-to-be – to the defendant in a recorded conversation should have been excluded as hearsay. The Court rejected the argument that statements by a person other than a defendant in a recorded conversation must be excluded as hearsay merely because those remarks occurred outside the courtroom. The Court explained that the wife’s statements were either non-assertive statements that are incapable of being true or false, or statements that were indisputably false. The statements were offered to show the effect they had on the defendant, and to provide context for his statements. As to one statement that was arguably offered for its truth, the defendant failed to seek a limiting instruction. The Court also rejected the argument that the wife of the hit-man-to-be should not have been permitted to give lay opinion testimony about her understanding of the substance of her conversation with the defendant. The Court noted that she was a participant in the conversation, and her testimony was helpful to the jury in clarifying a back-and-forth dialogue that contained abbreviated and unfinished sentences, and ambiguous references to events. The Court recognized that several times during cross-examination of the defendant, the prosecutor improperly asked whether other witnesses were lying. However, these “were-they-lying” questions did not prejudice the defendant, light of the substantial evidence of his guilt. Nonetheless, the court urged the United States Attorney’s offices in the Circuit “to do a better job of training their attorneys on this point.”