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.
Tuesday, December 21, 2004
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.
Wednesday, December 15, 2004
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.
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.
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.
Tuesday, December 14, 2004
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.
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.
Thursday, December 09, 2004
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.
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."
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 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.
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.
Tuesday, December 07, 2004
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.
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.
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