2241 Time Bar Same as 2254's

In Peoples v.Chatman, No. 03-12384 (Dec. 20, 2004), the Court (Anderson, Wilson, Owens b.d.) reaffirmed the holdings of Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003) and Thomas v. Crosby, 371 F.3d 782 (11th Cir. 2004), and held that the one-year time bar of 28 U.S.C. § 2244(d) applies not just to habeas petitions brought pursuant to 28 U.S.C. § 2254, but also to those brought pursuant to § 2241. Accordingly, Peoples’ § 2241 habeas petition, which was filed after the statute of limitations expired, was time-barred.

Free to revisit

In U.S. v. Eldick, No. 03-16158 (Dec. 20, 2004), the Court (Birch, Kravitch, Cudahy b.d.) vacated a sentence and remanded for resentencing, because sentence was imposed under the wrong statutory maximum. The Court noted that at resentencing the district court was free to revisit any rulings it had made at the initial sentencing.

Probable Cause to Arrest Even if Cop Cites Wrong Crime

In Devenpeck v. Alford, No. 03-710 (Dec. 13, 2004), the Supreme Court held that a warrantless arrest by a police officer is reasonable even if the offense establishing probable cause is not "closely related" to the conduct the arresting officer gives the defendant as the reason for the arrest at the time of arrest. The Court noted that under Whren v. United States, 517 U.S. 806 (1996), an arresting officer’s subjective reason for making an arrest is irrelevant to probable cause. What matters is whether, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Court noted that a "closely related offense" test for probable cause would have the perverse effect of causing officers to cease giving reasons for arrest, or to cite every conceivable reason for the arrest.

Lawyers' Standing to Sue for Non-Clients

In Kowalski v. Tesmer, No. 03-407, the Supreme Court held that attorneys lack third-party standing to assert the rights of criminal defendants who have been denied appellate rights after pleading guilty. [Note: it is thought that the Court will address the substantive issue – whether defendants who plead guilty can be denied appellate counsel, and can be denied the right to appeal unless a court specifically grants leave to appeal – in a pending case, Halbert v. Michigan, No. 03-10198].

Kotteakos to the rescue

In U.S. v. Hornaday, No. 03-13992 (Dec. 13, 2004), the Court (Anderson, Carnes, Bright b.d.) affirmed the conviction of a defendant under 18 U.S.C. § 2422(b) for using the internet to entice a minor to engage in prohibited sexual activity. After a number of internet and phone communications with an undercover agent posing as a father willing to allow his minor children to engage in sexual relations with the defendant, the defendant was arrested when he arrived at a meeting at which he expected to meet the children.
The Court rejected the argument that the defendant could not be convicted under § 2422(b) because his communications were all with an adult, the undercover agent. The Court noted that this argument was foreclosed by U.S. v. Murrell, 368 F.3d 1283 (11th Cir. 2004), which held that the existence of an adult intermediary did not affect the law’s application, when the defendant intended to induce a minor to engage in sexual activity.
The Court rejected the argument that the Commerce Clause required Congress only to penalize direct communications with children, noting that Congress can prohibit the misuse of the internet through intermediaries.
The Court agreed with Hornaday that the jury should not have been instructed that it could convict him under an aiding and abetting theory of liability, under 18 U.S.C. § 2. The Court recognized that a defendant cannot aid and abet a government agent in committing a crime, since the government agent never intends to commit the crime, i.e., to be the principal in the commission of a crime. The Court noted that §2(b) criminalizes conduct where a defendant gets a innocent third-person to commit an offense, and cited prior cases (particularly drug cases) which had so held. However, in Hornaday’s case, the undercover officer had no "children" who were willing to participate in unlawful activities. Since it is not a federal crime for a person to make believe on the internet or on the phone that he’s offering up his non-existent children to a sexual predator, Hornaday did not get an innocent person to commit an offense.
The Court concluded that the instruction was harmless error. The Court recognized that U.S. v. Martin, 747 F.2d 1404 (11th Cir. 1984) held that a faulty aiding and abetting jury instruction constituted reversible error, but held that Martin was not controlling because it had failed to correctly apply the Kotteakos standard of review. This standard inquires whether a reviewing court can say with "fair assurance that a non-constitutional error did not affect the verdict. Here, in view of the overwhelming evidence of Hornaday’s guilt as principal, the faulty instruction on aiding and abetting did not affect the verdict.

Consecutive Sentences

In U.S. v. Bidwell, No. 03-14790 (Dec. 15, 2004), the Court (Tjoflat, Dubina, Pryor) affirmed the imposition of a 15-year federal sentence for a father's filming and distributing his sexual abuse of his daughter, to run consecutive to a 30-year State sentence for the sexual abuse itself. The Court rejected the argument that USSG § 5G1.3 precluded the imposition of consecutive sentences.
The Court recognized that § 5G1.3 is designed to avoid the imposition of duplicative sentences. The Court pointed out, however, that this provision applies when an undischarged term of imprisonment resulted from an offense which has been fully taken into account in the calculation of an offender's offense level for a new offense. Here, the calculation of the offense level for the offense of trafficking in child pornography did not take account of the crime of sexual abuse. Videotaping is a different crime from sexual abuse.
The Court rejected the argument based on the fact that the sexual abuse could have been taken into account in the offense level calculation as part of Bidwell's "relevant conduct," regardless of whether it was actually taken into account by the sentencing judge. The Court noted that there was no manipulation of the charged conduct by the government to attain consecutive sentences. Instead, the State and Federal governments chose to prosecute the two crimes separately. In this situation, the district court has discretion to sentence consecutively.

Effective Assistance of Counsel?

In Florida v.Nixon, No. 03-931 (Dec. 13, 2004), the Supreme Court held that defense counsel for a defendant charged with a murder and subject to the death penalty did not render ineffective assistance when, without getting his client’s affirmative, explicit acceptance, he decided to concede that his client had committed murder and focused (unsuccessfully) on the sentencing phase of the trial.
The Court noted that counsel’s strategy was not the equivalent of a guilty plea, because he put the State to its proof at trial, and was able to exclude prejudicial evidence. Further, the client’s silence each time information was put to him did not render unreasonable counsel’s decision to concede guilt and to home in, instead, on the life or death penalty issue.
Counsel’s conduct was not per se ineffective under U.S. v. Cronic, 466 U.S. 648 (1984) but instead should be evalutated under the standard of Strickland v. Washington, 466 U.S. 668 (1984), because counsel did not entirely fail to function as the client’s advocate. The Court found that the potential sentence in a capital case can affect counsel’s strategic calculus. The Court noted that challenging guilt in the face of overwhelming evidence and a heinous crime could undermine counsel’s credibility with the jury at the sentencing phase, when counsel is seeking to spare the client’s life. The Court noted that the defendant had been unresponsive to counsel’s inquiries about strategy, and declined to impose a blanket rule requiring the defendant’s consent for a concession of guilt.

Guideline in harmony with Statute

In U.S. v. Vega, No. 03-13329 (Dec. 8, 2004), a panel of the Court on rehearing (Tjoflat, Barkett & Siler b.d.), reversed its prior published decision at 365 F.3d 988 (Sentencing Commission exceeded its statutory authority when it provided for an enhancement for weapons possessed under a "grandfather" clause of the weapons ban), and upheld the sentence enhancement.
The Court pointed out that the statute at issue,18 U.S.C. § 924(a)(1)(A) criminalizes false statements made in connection with the transfer of firearms, and does not distinguish between pre and post weapons ban statements. The Commission could rationally have decided to penalize more severely false statements made, as here, in connection with semiautomatic weapon transfers, than in connection with less dangerous firearms. Thus, although the statutes did not criminalize possession of certain "grandfathered," pre-ban, weapons, the statute at issue, which criminalized the making of false statements, could apply to both pre and post-ban statements. The Court noted that Congress had upped the penalties for use of a semiautomatic weapon during a crime of violence when it passed the weapons ban, and the Guidelines' increased penalty for false statements in connection with these weapons was in fact consistent with Congressional intent.

"Lights out"

In U.S. v. Wright, No. 03-13359 (Dec. 8, 2004), the Court (Edmondson, Pryor, Fay) affirmed the conviction of a defendant convicted of being a felon in unlawful possession of a weapon, in violation of 18 U.S.C. §§ 922(g) and 924.
The defendant was stopped for speeding and driving erratically. He was stopped, and failed a field sobriety test. When the officer instructed Wright to place his hands behind his back, a struggle ensued. After Wright was subdued, his vehicle was searched, and a firearm was found under the seat. After his arrest, Wright, making the signal of a hand pointing a gun, commented that the officers were luck he had not made it back to his car, because "it would have been lights out."
The Court rejected a sufficiency of the evidence challenge, noting that the jury was free to reject Wright’s father’s testimony that it was his gun under the seat in the vehicle, and that Wright’s constructive possession of the gun in the vehicle he was driving, coupled with the incriminating "lights out" comment, sufficed.
The Court also rejected the argument that the trial court abandoned its neutral role when it (1) told the prosecutor he had neglected to have the witness identify the defendant as the perpetrator, and (2) asked a testifying officer to give clarifying details regarding Wright’s hand-pointing gesture. The Court found this did not evidence bias, and that the district court was authorized to "clarify" the evidence presented through its own questions.
The Court found no error, under Fed. R. Evid. 404(b), in admitting evidence of Wright’s driving which led to his stop, or of his resisting arrest. The Court noted the need "to put a cohesive sequence of the crime before the jury." Further, resisting arrest was probative consciousness of guilt.
The Court rejected a challenge to a jury instruction that resisting arrest may help establish guilt or innocence. The Court reviewed the issue for plain error, because the defendant objected at trial only that the instruction was not a pattern jury instruction, rather than the argument on appeal that the instruction was unwarranted. . The Court noted that evidence of flight must meet certain criteria of probativeness before it will be admitted. Significantly, these criteria must include permit an inference from consciousness of guilt concerning the crime charged to actual guilty of the crime charged. The Court noted that while in this case the defendant’s resisting arrest could be only related to his arrest for drunk driving, and not for unlawful weapon possession, it was for the jury to decide how to weigh this evidence, and the instruction merely authorized the jury to draw a permissible inference.
Further, the Court rejected the challenge to the trial court’s decision, without informing the parties, to furnish the jury, during deliberations, with a ruler, in response to the jury’s request for a ruler. Again, reviewing the matter for plain error, the Court found that the ruler merely functioned as a visual aid and was unlikely to have made a difference.
Finally, the Court rejected the argument, raised for the first time on appeal, that § 922(g) lacked constitutional support under the Commerce Clause. Noting that the Eleventh Circuit had previously decided this issue, the Court dismissed the challenge, stating that "it would not be useful for us to address this issue."

"Fleeing" isn't necessarily "Endangering"

In U.S. v. Wilson, No. 03-14408 (Dec. 7, 2004), the Court (Barkett, Hull & Cox) held that a prior conviction for aggravated child abuse counts as a crime of violence for purposes of the 16-level enhancement authorized by USSG § 2L1.2(b)(1)(A)((ii). The Court noted that a prior conviction under this provision references any offense that has "physical force" as an element "and" any one of a number of specific enumerated offenses, e.g. murder, manslaughter, etc... The defendant conceded that his aggravated child abuse involved "physical force" but contended that since this offense was not enumerated in the Guideline, it did not count. The Court rejected the argument, pointing out that the enumerated offenses were merely for purposes of "illustration," and did not limit the range of qualifying prior offenses involving "physical force."
The Court reversed the imposition of a two-level enhancement for causing bodily injury because it was based on the spraining of a law enforcement officer’s finger when he tacked Wilson as Wilson attempted to flee from arrest. The Court noted that the physical injury enhancement applies when a defendant behaves recklessly "in the course of fleeing," but this meant the mere fact of fleeing, in itself, did not trigger the enhancement. Wilson’s flight alone could not be said to have created the kind of "substantial risk of death or serious bodily injury" which the incremental punishment of the Guideline covered.

The fine lines of "means of identification"?

In U.S. v. Auguste, No, 03-16121 (Dec. 7, 2004), the Court (Hull, Marcus & Mills b.d.), affirmed the imposition of a two-level sentence enhancement, pursuant to USSG § 2B1.1(b)(9)(C)(i), for the "unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification," to a defendant who added her name to a victim’s line of credit as a purported legitimate secondary holder.
The Court noted that credit card numbers and credit cards both count as "means of identification." The Court noted Auguste’s argument that she used her own name, not someone else’s name, when she used the credit card. But the Court found this point inapposite, because the enhancement applies to a person who unlawfully obtains a "means of identification." Here, Auguste used account numbers to obtain credit cards, and her conduct therefore fell within the plain language of the Guideline.

Don't Forget the Laundry List; But Read the Dissents

In U.S. v. Levy, No. 01-17122 (Dec. 3, 2004), the Court denied rehearing en banc from its panel decision holding that a defendant waived reliance on Blakely in a supplemental filing when, prior to the Supreme Court’s decision in Blakely v. Washington, the defendant failed to raise a Blakely-type claim in his initial appellate brief.
In a plurality opinion concurring in the denial of rehearing en banc, Judges Hull, Anderson, Carnes & Pryor explained that the retroactivity requirement of Griffith v. Kentucky, 479 U.S. 314 (1987), which mandates that new Supreme Court cases apply to cases on direct appeal, did not trump the Court’s procedural default rules. The concurring opinion noted that a litigant is not precluded from raising an argument on appeal simply because a previous appeal has been decided that rejects the argument, since the litigant can pursue the issue en banc, or in the United States Supreme Court. The concurring opinion further noted that its rule that it would not consider claims not raised in an initial brief was "well-established," and found no grounds from deviating from it.
Three judges dissented. Judges Tjoflat and Wilson wrote what is essentially a cert petition for those seeking to apply Blakely for the first time in pipeline appeals, explaining why the Eleventh Circuit's "well-established" position is neither that nor right, and the cases on which it relies -- U.S. v. Nealy and U.S. v. Ardley -- are contrary to the holding in Griffith. Under the Eleventh Circuit's interpretation, they argue, there is an unaccounted-for gap between pipeline appeals and closed cases, a gap that Griffith seemingly took pains to avoid. Judges Tjoflat and Wilson nicely identify a circuit split of authority -- Nealy, Ardley, and now Levy -- stand alone among the circuits, since all other circuits allow pipeline appellants to supplement initial arguments with intervening arguments and authority. They also worry about lawyers littering briefs with all kinds of "innovative" arguments, even though the issues have already been decided adversely by precedent, awaiting the next Apprendi, Blakely, etc. Judge Barkett dissented in a separate opinion in which she argues that neither Nealy nor Ardley apply, but that Griffith does. Those who have had supplemental briefs and supplemental authority rejected by the Eleventh have their cert petitions written for them in the dissenting opinions.

The New Federalism: Court Bails Out State

In Day v. Crosby, No. 04-10778 (Nov. 29, 2004), the Court (Tjoflat, Dubina, Pryor) held that a district court is authorized sua sponte to dismiss a habeas petition under the AEDPA statute of limitations, even though the State (erroneously) conceded in its answer that the petition was timely. The Court recognized that in ordinary civil cases, a statute of limitations defense is waivable, but pointed out that habeas cases are governed by the Rules Governing § 2254 cases, and these rules specifically authorize district courts to order summary dismissals. The Court noted the federal court’s "obligation" to enforce the AEDPA statute of limitations. The Court noted a conflict with other circuits which have held that a court does not have authority to sua sponte "cure" a party’s waiver.

The Value of a Plea Agreement

In U.S. v. Cesal, No. 03-15090 (Nov. 23, 2004), the Court (Carnes, Hull, and Wilson) affirmed the conviction and life sentence for a charge of conspiracy to distribute marijuana. The Court rejected several claims of error regarding Mr. Cesal's guilty plea and his request to proceed pro se. And the Court ruled that Mr. Cesal had waived his right to appeal his life sentence.
The Court relied on the written plea agreement entered into by Mr. Cesal and the government that was negotiated on the day of trial while the jury that had been selected but not sworn waited outside the courtroom. On the eve of trial, Mr. Cesal's co-defendant had negotiated a plea agreement with the government. In the plea agreement, Mr. Cesal consented to plead guilty to one count of conspiracy to distribute marijuana, to waive his right to appeal his sentence, and to cooperate with the government. The government agreed to hold Mr. Cesal accountable for only 1000 to 3000 kilograms of marijuana. The agreement also stated that if Mr. Cesal failed to fulfill his obligations, the government could recommend any sentence it deemed appropriate. Mr. Cesal entered his plea of guilty immediately and was then debriefed by government agents. A few days later, Mr. Cesal sought to withdraw his plea based on his disagreement with the facts as set out by the government and ineffective assistance of counsel.
In affirming the conviction, the Court noted that the plea colloquy, held right after the agreement was hammered out, did not go smoothly with Mr. Cesal expressing some pressure to plead guilty based on the higher sentence he faced if he went to trial and disagreeing with some of the facts in the government's factual proffer. But the Court held that the district court had addressed the core concerns of Rule 11 by ensuring that the plea was voluntary, that Mr. Cesal understood the nature of the charges and he understood the consequences of his guilty plea. The Court also found no abuse of discretion in the denial of a motion to withdraw the guilty plea noting the sufficient time spent on negotiating the agreement, the assistance of counsel, and the fact that the court was poised to begin the trial with a jury waiting when the plea was accepted. The Court further ruled that the government did not breach the plea agreement when it argued that Mr. Cesal should be held responsible for more than10,000 kilograms of marijuana, as he admitted in his debriefing, instead of the limit of 1000 to 3000 kilograms noted in the plea agreement. The Court agreed with the government that Mr. Cesal's request to withdraw his plea and his testimony at a hearing on that issue constituted a breach of the agreement which then allowed the government to argue for whatever punishment it deemed appropriate.
The Court also upheld the denial of Mr. Cesal's request to proceed pro se noting his vacillation on that issue before the district court. Finally, the Court upheld the appellate waiver contained in the plea agreement in which Mr. Cesal expressly agreed to waive his right to appeal his sentence, and, thus dismissed that portion of the appeal. [Summary by Tim Cone]

Confrontation in the Digital Age

U.S. v. Yates, No. 02-13654 (Nov. 24, 2004) . The Eleventh Circuit vacated fraud and money laundering convictions based on a violation of the Sixth Amendment's Confrontation Clause. At trial, the government was allowed to introduce, over defense objection, the testimony of two key witnesses via two-way videoconferencing from Australia. The witnesses, who were beyond subpoena power, were willing to testify but not to travel to Alabama to do so. The Court first held that it would apply the two-part test announced in Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157 (1990), to determine whether a Sixth Amendment violation had occurred. In Craig, a case dealing with a rule that allowed a child victim of abuse to testify via a one-way closed-circuit video, the Supreme Court held that absence of a physical, face-to-face confrontation does not violate the Sixth Amendment "where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850, 110 S. Ct. at 3166. The application of the Craig standard is important because in applying Craig, the Eleventh Circuit declined to follow the lead of the Second Circuit which had approved the use of two-way, closed-circuit television to present witness testimony from an undisclosed location outside the courtroom. See United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). In Gigante, the Second Circuit reasoned that the Craig standard only applied in the case of a one-way, closed-circuit transmittal where the witness could not see the defendant. Id. at 81. In contrast, the Eleventh Circuit held that the Craig standard applied anytime that the government sought to deny the defendant a physical, face-to-face confrontation with a witness. Applying Craig and reversing, the Court rejected the government's contention, which had been accepted by the district court, that the testimony served the "important public policy of providing the fact-finder with crucial evidence." Specifically, the Court held that "the prosecutor's need for the testimony in order to make a case and expeditiously resolve it are not public policies that are important enough to outweigh a defendant's right to confront an accuser face-to-face."

Certiorari Granted in Dodd v. U.S.

The Supreme Court today granted certiorari in Dodd v. U.S., No. 04-5286, 2004 WL 2073304 (U.S. Nov. 29, 2004), to resolve the circuit conflict over the starting point for the one-year AEDPA statute of limitations as to newly-recognized rights. In Dodd v. U.S., the Eleventh Circuit held that 28 U.S.C. § 2255(3)’s one-year limit for filing a § 2255 motion seeking relief based on a right newly recognized by the Supreme Court and made retroactive for collateral relief, begins to run from the date the Supreme Court recognizes the new right and not from the date that a court of appeals (or district court) finds the newly-recognized right to be retroactive. Thus, as the Court explained, as soon as the Supreme Court newly announces a right, all prisoners who could obtain relief from violation of that right – if it were made retroactive – should proceed to file for relief, on the hope that the right will later be seen to be retroactive. Such prisoners cannot simply await a decision on retroactivity before filing a 28 U.S.C. § 2255 motion. Here, the movant sought relief under the holding in Richardson v. U.S., 526 U.S. 813 (1999), that a CCE verdict requires jury unanimity on the constituent CCE violations. Although the Eleventh Circuit did not recognize Richardson as having retroactive effect until 2002 (several months after Dodd filed his § 2255 motion), that retroactivity decision was irrelevant to the running of the one-year time period (which period jump-started Dodd’s eligibility to seek § 2255 relief, his conviction having become final several years before the Richardson decision).
[NOTE: Petitioner Dodd is represented by our office's appellate division; the petition was filed by AFPD Janice Bergmann.]

Not Much of a Friend

Many thought that the pending Supreme Court case of Shepard v. U.S. -- raising the permissible means by which a sentencing judge may determine if an Armed Career Criminal Act predicate offense exists -- was a vehicle for the Court to recede from its earlier decision in Almendarez-Torres. An amicus brief was even filed on the issue by NACDL. At oral argument, a justice tried to move the discussion in that direction, but counsel for Shepard short-circuited that possibility:

JUSTICE O'CONNOR: Do you join the amici in saying Almendarez-Torres has to be overruled?

MS. THOMPSON: No, I do not.

JUSTICE O'CONNOR: No.

MS. THOMPSON: I do not join . . .

Transcript of OA at 13. That ended all mention of the continuing viability of Almendarez-Torres . . .

Should Have Sold Them on eBay

In U.S. v. Williams, No. 03-15395 (Nov. 16, 2004), on a government appeal, the Court (Edmondson, Fay, Corrigan b.d.) reversed a district court's order granting a Rule 29 judgment of acquittal after a jury returned a guilty verdict against a defendant charged with one count of bank fraud. The bank fraud conviction arose out of the defendant's unsuccessful attempt, along with her daughter, to get a bank to issue her a cashier's check on the basis of a (false) representation that a wire transfer would soon be coming into her account as payment for two rare signed baseballs she sold. On appeal, the government argued that the district court erred in relying on the defendant's testimony at trial that her daughter was orchestrating the scheme and that she knew nothing. The Court agreed, noting that the evidence, after a guilty verdict, must be viewed in the light most favorable to the government. The government's evidence showed that Williams was aware of lies about the forthcoming wire transfer, and about the sale of rare baseballs, and was attempting to get money from the bank, or aiding and abetting such a scheme. The Court noted that the district court's contrary finding was based on the defendant's testimony. However, the jury was free to reject that testimony, and could in fact convict the defendant in part because they disbelieved it.

Home & Garden

In U.S. v. Pineiro, No. 03-1473 (Nov. 15, 2004), the Court (Hull, Marcus, Hancock b.d.) affirmed a conviction and sentence of a defendant convicted of maintaining a place for purpose of manufacturing and distrbuting marihuana. The Court rejected the argument that marihuana plants evidence should have been suppressed because Pineiro did not consent to a search of a house at which marihuana plants were found. Based on Pineiro's "cooperation" with the agents who searched the house, the Court found the requisite consent. The Court also found no reason to suppress Pineiro's inculpatory statements, finding that hewas informed of his Miranda rights before he made the statements. The Court also rejected a challenge to the sufficiency of the evidence. Pineiro contended that the marihuana plants were left over from the prior owner, from whom he had just purchased the house a few weeks before. The Court pointed out that material consistent with the equipment and material used in marihuana grow houses was found in the house. The Court also noted that a photograph of Pineiro in the house was recovered, and neighbors reported a smell of marihuana, and lights on all day and all night. In view of this evidence, the jury was free to reject Pineiro's defense that the material was left over from a prior owner. Recognizing that a conspiracy conviction presented a "closer question," the Court noted that the government presented evidence of Pineiro's close personal relationship with his cousin, who was involved in marihuana trafficking. Further, Pineiro's vehicle was seen parked at the marihuana grow house at thetime when it was owned by his cousin. The Court further noted "substantial similarities" between a grow house operated by the cousin and another grow houseat which Pineiro was arrested. This evidence sufficed to give rise to a jury's guilty verdict beyond a reasonable doubt.

Down Goes Frazier

In U.S. v. Frazier, No. 01-14680 (Oct. 15, 2004), the Court (en banc) affirmed the district court's exclusion of defense expert testimony of a forensic investigator, and the defendant's conviction for kidnapping, during which a rape was allegedly committed.During the trial, Frazier sought to introduce the expert opinion of a private forensic investigator that even though a thorough rape investigation was conducted, there was no forensic evidence to substantiate a claim of rape in the case, and it would be expected that some transfer of either hairs or bodily fluid would have occurred if the victim's account were true. The district court disallowed this testimony. The district, however, allowed the government to put on expert testimony that the absence of forensic evidence of rape did not undermine the victim's account.The Court noted that a district court's decisions regarding the admissibility of expert testimony are reviewed for abuse of discretion. The admissibility of expert testimony under Fed. R. Evid. 702 involves a "rigorous"three-part inquiry: (1) whether the expert is qualified to testify competently, (2) whether the expert methodology is sufficiently reliable, and (3) whether the testimony assists the trier of fact in understanding the evidence. The Court noted that while experience can be a basis for qualifying an expert, the reliability criterion remains a discrete, independent and important requirement for admissibility. The Court recognized that, as to the first criterion, qualification was satisfied: he was sufficiently experienced in forensic investigations and rape investigations. The Court found, however, that the district court properly excluded the investigator's testimony because it was not reliable. The Court noted that the very opinion the investigator proposed to give - that one would"expect" inculpatory hair or seminal fluid evidence to be recovered - was inherently "uncertain." Moreover, the expert never explained just how his experience, or the texts he read, supported his "expectancy" opinion. No study was cited in support. Only a single investigation was mentioned. "Simply put,[the investigator] did not offer any hard information concerning the rates of transfer of hair or fluids during sexual conduct." The Court also found that the jury would not be assisted by the opinion, as it had no way of understanding what a normal "expectancy" would be for finding evidence of rape. In a lengthy footnote, the Court added that even if erroneous, the exclusion of the expert evidence would have been harmless error because defense counsel was able to make the argument to the jury.The Court also found no error in allowing the government experts to testify on rebuttal regarding the lack of significance of the failure to find forensic evidence of rape. The Court found that Frazier had opened the door to this issue by calling attention to the lack of forensic evidence. Further, it was not unfair to allow the government experts to testify even though the defense expert was not permitted to testify, because the exclusion of the defense testimony was based on its lack of reliability, a finding which did not necessarily apply to the government experts.Finally, the Court recognized that Frazier had a constitutional right to put on a defense. But this right did not extend to putting on unreliable expert testimony.

No Pryor Restraint

In Evans v. Stephens, No. 02-16424 (11th Cir. Oct. 14, 2004) (en banc), the Eleventh Circuit held that the President did not exceed his constitutional authority, under the recess appointment clause, to appoint Judge Pryor to the Eleventh Circuit without the consent of the Senate and concluded that "Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Courtduring his term of office." In arriving at that conclusion, the Court held that: 1) the President has the authority to make recess appointments to Article III courts; 2) the recess of the Senate, as used in the recess appointment clause, includes an intra-session recess (here, a ten-day President's Day recess); and 3) the vacancy to be filled need not arise during the particular recess in order to be filled. Judge Barkett filed a long and scholarly dissent arguing that the recess appointment clause only authorizes the President to fill vacancies that arise during a recess and that the appointment must be made during that same recess. Although Judge Barkett would not reach the issue, she opines that the recess appointment clause only applies to inter-session recesses.["The President shall have Power to fill up all Vacancies that may happen duringthe Recess of the Senate." U.S. Const., art. II, § 2, cl.3]