Eleventh Circuit Court of Appeals - Published Opinions

Thursday, April 28, 2005


In Small v. U.S., No. 03-750 (April 16, 2005), the Court held that the phrase "convicted in any court" contained in the prohibition in 18 U.S.C. § 922(g)(1) on firearm possession by any person convicted in any court of a crime punishable by imprisonment exceeding one year encompassed only domestic, not foreign, convictions.
The Court noted that it is appropriate to assume that Congress has domestic, not foreign, concerns in mind when it writes criminal statutes. Further, foreign convictions can involve conduct that is not criminal under Amercan laws. The Court pointed out that in view of the language creating exceptions to the firearm possession prohibition, reading the statute to include foreign convictions could create "anomalies," where a foreign conviction, for example for antitrust violations, would count whereas a domestic one would not. The Court recognized that the broad purpose of the statute of protecting public safety by keeping guns out of the hands of those likely to create a threat would support a broad reading of the law. But it concluded that Congress paid no attention to foreign convictions.


In Pasquantino v. U.S., No. 03-725 (April 26, 2005), the Court held that a plot to defraud the Canadian government of tax revenue violates the federal wire fraud statute, 18 U.S.C. § 1343. The plot involved the smuggling of large quantities of liquor from the United States to evade Canada's heavy alcohol import taxes..
The Court found that Canada's right to uncollected excise taxes on liquor is "property" within the wire fraud statute's meaning. Further, the Court found that its construction of § 1343 did not derogate from the common law revenue rule, which prohibits one sovereign from enforcing its tax liabilities in the courts of another sovereign. The Court noted that this criminal prosecution did not have as its purpose the collection of revenues. Further, the prosecution was not the "indirect" enforcement of tax liability collection, and, based on the then-existing caselaw, would not have been regarded as such by the 1952 Congress which enacted the wire fraud statute. In addition, the prosecution poses little risk of the principal evil against which the revenue rule protects: judicial evaluation of the revenue policies of foreign sovereigns. The prosecution was brought by the Executive Branch of the United States government, which is entrusted with primary responsibility for foreign relations. Further, even though part of the criminal judgment involved restitution of the unpaid taxes, this restitution did not matter, as the government had an independent interest in criminal prosecution. The Court also rejected the argument based on the principle of avoiding giving statutes extraterritorial effects, pointing out that the criminal scheme was complete when the scheme was executed in the United States.

Monday, April 25, 2005

Verbitskaya: Hobbs Act convictions affirmed

In U.S. v. Verbitskaya, No. 03-11870 (April 21, 2005), the Court affirmed convictions and sentences for defendants convicted of extortion in violation of the Hobbs Act.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant’s challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant’s connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel’s absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.

Raad: Alien smuggling mandatory minimum not cruel & unusual

In U.S. v. Raad, No. 03-15300 (April 21, 2005), the Court rejected a challenge to the imposition of a five-year mandatory minimum sentence for smuggling three or more aliens in violation of 8 U.S.C. § 1324(B)(2)(B)(iii). The Court rejected the argument that this punishmnent was "cruel and unusual" punishment under the Eighth Amendment. The Court noted that it had previously upheld mandatory minimums, and found that the five-year punishment was not "cruel and unusual" simply because it fell at the high end of the Guideline range.

Friday, April 22, 2005

Abreu: Fingerprint expert ok

In U.S. v. Abreu, No. 04-14376 (April 20, 2005), the Court affirmed a conviction for marihuana distribution, rejecting the defendant’s argument that the government’s fingerprint expert failed to satisfy the requirements of FRE 702.
The Court noted that other Circuits have found that fingerprint evidence is sufficiently reliable and meets the standards of FRE 702. Moreover, in view of the "broad latitude" of district courts in admitting evidence, the district court did not err in relying on the "general acceptance" of such evidence.

Thursday, April 21, 2005

Rodriguez: rehearing en banc denied

In U.S. v. Rodriguez, No. 03-00217 (April 19, 2005) (no plain error under Booker where the defendant could not show he would get a lower sentence at resentencing), the 11th Circuit denied rehearing en banc. Judges Tjoflat and Barkett dissented at length from the denial of rehearing en banc, and Judge Carnes wrote a long opinion concurring in the result.

Monday, April 18, 2005

Day: Vulnerable victim enhancement

In U.S. v. Timothy Day, No. 04-10551 (April 15, 2005), the Court (Marcus, Fay & Siler b.d.) affirmed the convictions and sentences of defendants convicted of mail fraud.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.

Friday, April 15, 2005

Custer revisited

In U.S. v. Custer, No. 04-14111 (April 13, 2005), the Court (Tjoflat, Dubina, Marcus), on a petition for panel rehearing, the Court vacated Custer’s sentence and remanded for resentencing consistent with the Supreme Court’s opinion in Booker. The Court noted that its prior decision rejecting Custer’s challenge to his sentence came down shortly before the Supreme Court decided Booker. The Court noted that Custer had raised Booker-type challenges to his sentence in his initial brief, had preserved the issue in the district court, and not waived the issue in his plea agreement.

Thursday, April 07, 2005

Orduno-Mireles: Almendarez-Torres still good law

In U.S. v. Orduno-Mireles, No. 04-12630 (April 6, 2005), the Court (Birch, Barkett, Marcus) rejected post-Booker challenges to a defendant’s 16-level enhancement pursuant to USSG § 2L1.2(b)(1)(A), after a conviction for illegal re-entry after being deported subsequent to an aggravated felony conviction.
The Court rejected the argument that the defendant’s prior convictions for unlawful sexual activity with certain minors, and burglary of a dwellin, can be used to support a 16-level enhancement. The Court noted that these offenses are specifically listed in the Guideline as qualifying offenses. The Court rejected the argument that the vacatur of one conviction after Orduno-Mireles’ return to the United States meant that it should not count for enhancement purposes. The Court pointed out that the Guideline was worded to take account of convictions prior to deportation, and that it did not matter whether the conviction was subsequently vacated.
The Court also rejected the argument that the fact of prior conviction should have been submitted to a jury. The Court pointed out that Almendarez-Torres remains good law. The Court added that the recent Shephard v. U.S. case did not alter this result, because Shephard involved the resolution of disputed issues of fact, and, here, the facts underlying the prior convictions were not in dispute.
In a lengthy footnote, the Court noted that there was no "plain error" in the imposition of mandatory Guideline enhancements, post-Booker, because the sentencing court declined a motion for downward departure, thereby undermining a showing (required in the third prong of Booker plain error analysis in the Eleventh Circuit) of a reasonable probability of a different result if the Guidelines had been applied in an advisory fashion. [Note: Given the strict pre-Booker limitations on obtaining downward departures, it seems questionable whether this is a reliable indicator of a different result under an advisory regime. In this case, one prior qualifying conviction was vacated, and the district court might have been more concerned about this vacatur had it realized that the Guideline language which made this vacatur irrelevant was not binding.]

Paz: Booker error not Harmless

In U.S. v. Paz, 2005 WL 757876 (Apr. 5, 2005), the Court (Tjoflat, Anderson, Pryor), in its first post-Booker application of harmless error review of a sentence, vacated a sentence and remanded for resentencing because the district court at sentencing stated that, were the Guidelines not mandatory, it would impose a lesser sentence.

Tuesday, April 05, 2005

Johnson AEDPA requires due diligence

In Johnson v. U.S., No. 03-9865 (Apr. 4, 2005), the Supreme Court held that, in a case of a prisoner’s collateral attack on a federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated, the one-year statute of limitations of 28 U.S.C. § 2255 ¶ 6 begins to run when a prisoner receives notice of the order vacating the conviction, provided that the prisoner sought the vacatur with due diligence in state court after entry of the federal judgment with the enhanced sentence.
In so ruling, the Supreme Court rejected the Eleventh Circuit’s test, which had dismissed the prisoner’s claim on the ground that that the state court order did not start the limitations period. However, the Supreme Court ultimutely upheld the decision of the Eleventh Circuit, finding that Johnson had not acted with due diligence in seeking vacatur of his prior conviction, and therefore finding that his § 2255 petition was time-barred.