In U.S. v. York, No. 04-12354 (Oct. 27, 2005), the Court affirmed a conviction and 1,620-month sentence on a defendant convicted of RICO conspiracy and other crimes arising out of the interstate transport of minors with the intent to engage in unlawful sexual activity.
The Court rejected the argument that the indictment was invalid because the Georgia grand jury which indicted him was infected with adverse pre-trial publicity. The Court noted that U.S. v. Waldon, 363 F.3d 1103 (11th Cir. 2003) held that the protections against publicity affecting a jury during trial did not apply to a grand jury. The Court explained that its distinction was based on the different functions of the two bodies, and the different procedural restrictions which apply. Further, York did not show that the publicity surrounding his case "substantially influenced" the decision to indict him.
The Court also rejected the argument that the sexual abuse charges should have been severed from the financial structuring charges. The Court "readily" concluded that York showed no "actual prejudice," and noted that the jury was specifically instructed to consider each count separately.
Finally, the Court found no Booker plain error in York’s sentence. The Court pointed out that that district court, while imposing the consecutive sentences which yielded the 1,620-month total, stated the sentence was "appropriate" in light of "the nature of the crimes, the victims involved, the length of the sentence, and the totality of the circumstances." These comments undercut any inference of plain error based on the district court’s misapprehension of its powers under the then-mandatory Guidelines.
Finally, the Court rejected an ex post facto challenge to the court’s reliance on a 2000 version of the Guidelines, noting that an "essentially identical" version of the specific cross-reference at issue was in effect in the earlier version of the Guidelines.
Monday, October 31, 2005
Friday, October 21, 2005
Ochoa: No Batson "pattern" vs. hispanics
In U.S. v. Ochoa-Vasquez, No. 03-14400 (Oct. 20, 2005), the Court (Hull, Edenfield b.d., Barkett dissenting), the Court affirmed the conviction and sentence for drug trafficking.
The Court rejected the argument that certain documents in a related case should have been unsealed, because they involved a potential witness. The Court noted that most of the documents had been unsealed, and that Ochoa’s renewed motion to unseal had failed to specify the new grounds for the unsealing in violation of the Local Rule, which requires the different facts for a renewed motion to be stated by the movant. Further, the failure to unseal the documents did not prejudice Ochoa, because he failed to show he would have called the potential witness, and the Court’s own review of the documents did not reveal anything exonerating Ochoa.
The Court agreed with Ochoa that the district court’s "sealed docket" violated the Court’s caselaw regarding open trials, but found no prejudice because the district court ultimately unsealed most of the documents, and the other documents did not contain exonerating material.
The Court upheld the district court’s decision to empanel an anonymous jury, noting Ochoa’s link to an organized criminal organization and past efforts to obstruct justice by killing informants.
The Court rejected Ochoa’s Batson challenge to the government’s use of peremptory challenges against Hispanic venirepersons. Ochoa’s challenge rested on the percentage of strikes used to eliminate Hispanic jurors. But the district court found that it could not ascertain which anonymous venirepersons were Hispanic, and the Court deferred to that finding. The Court noted that the better practice would be to disclose to the parties beforehand, in anonymous jury cases, the self-reported ethnicity of potential jurors. Moreover, even if the district court could in fact determine the ethnicity of the stricken jurors, Ochoa failed to show a "pattern" of strikes. The government used five of its nine strikes against Hispanics, but accepted six; Ochoa struck seven of 13.
The Court rejected the argument that certain documents in a related case should have been unsealed, because they involved a potential witness. The Court noted that most of the documents had been unsealed, and that Ochoa’s renewed motion to unseal had failed to specify the new grounds for the unsealing in violation of the Local Rule, which requires the different facts for a renewed motion to be stated by the movant. Further, the failure to unseal the documents did not prejudice Ochoa, because he failed to show he would have called the potential witness, and the Court’s own review of the documents did not reveal anything exonerating Ochoa.
The Court agreed with Ochoa that the district court’s "sealed docket" violated the Court’s caselaw regarding open trials, but found no prejudice because the district court ultimately unsealed most of the documents, and the other documents did not contain exonerating material.
The Court upheld the district court’s decision to empanel an anonymous jury, noting Ochoa’s link to an organized criminal organization and past efforts to obstruct justice by killing informants.
The Court rejected Ochoa’s Batson challenge to the government’s use of peremptory challenges against Hispanic venirepersons. Ochoa’s challenge rested on the percentage of strikes used to eliminate Hispanic jurors. But the district court found that it could not ascertain which anonymous venirepersons were Hispanic, and the Court deferred to that finding. The Court noted that the better practice would be to disclose to the parties beforehand, in anonymous jury cases, the self-reported ethnicity of potential jurors. Moreover, even if the district court could in fact determine the ethnicity of the stricken jurors, Ochoa failed to show a "pattern" of strikes. The government used five of its nine strikes against Hispanics, but accepted six; Ochoa struck seven of 13.
Tuesday, October 11, 2005
Callahan: no habeas relief for trial judge stepping into police interrogation
In Callahan v. Campbell, No. 04-12009 (Oct. 5, 2005), the Court (Tjoflat, Black, Wilson) denied habeas relief to a death row inmate sentenced to death for a 1982 murder.
The Court rejected challenges based on the fact that the Alabama trial judge who ultimately presided over Callahan’s trial stepped into the police interrogation room, while Callahan was being interrogated after arrest, to ascertain whether his right to counsel was being respected.
The Court found no Supreme Court case directly on point, and noted that the Supreme Court has merely held that a judge cannot adjudicate a case where he was also an investigator for the government. Here, the judge was not an investigator for the government, having not been in the room during the interrogation, and having only interved on the right to counsel question.
Further, the judge’s failure to recuse himself did not violate Callahan’s Sixth Amendment right to call witnesses. The Court noted that others testified about the incident and that the law does not give a defendant a right to call "a witness he perceives as most credible."
The Court also rejected the argument that Callahan’s trial lawyer was constitutionally ineffective for failing to object to the admission of some of Callahan’s incriminating statements to police. The Court noted that the Alabama state courts had found that these specific statements were admissible under state law, and that a lawyer is not ineffective for not objecting to statements that were admissible.
The Court also found that Callahan’s lawyer, Knight, who had since died, was not ineffective at the penalty phase. For one, when a lawyer is dead and unavailable, the Court presumes he was not ineffective. For another: "When we place ourselves in Knight’s position, which we must, we see the following: overwhelming evidence that his client committed a premeditated kidnapping, rape, and murder of a random victim, including a confession to the kidnapping and rape in which he concocted a prior sexual relationship with the victim, and insinuated his ex-wife was the real murderer; his client’s last two wives left him, in part, bexause he was physically abusive; his client had two previous convictions for assault with intent to murder, one of which arose from when he shot his own 11-year-old nice in the foot; his client’s past included no compelling mitigation evidence, such as mental health problems or physical abuse; and his client had already once been sentenced to death for the murder [in a sentence that was overturned and remanded]. Given the hand Knight was delath, we cannot say a decision to focus on mercy instead of mitigation was an unreasonable one."
The Court rejected challenges based on the fact that the Alabama trial judge who ultimately presided over Callahan’s trial stepped into the police interrogation room, while Callahan was being interrogated after arrest, to ascertain whether his right to counsel was being respected.
The Court found no Supreme Court case directly on point, and noted that the Supreme Court has merely held that a judge cannot adjudicate a case where he was also an investigator for the government. Here, the judge was not an investigator for the government, having not been in the room during the interrogation, and having only interved on the right to counsel question.
Further, the judge’s failure to recuse himself did not violate Callahan’s Sixth Amendment right to call witnesses. The Court noted that others testified about the incident and that the law does not give a defendant a right to call "a witness he perceives as most credible."
The Court also rejected the argument that Callahan’s trial lawyer was constitutionally ineffective for failing to object to the admission of some of Callahan’s incriminating statements to police. The Court noted that the Alabama state courts had found that these specific statements were admissible under state law, and that a lawyer is not ineffective for not objecting to statements that were admissible.
The Court also found that Callahan’s lawyer, Knight, who had since died, was not ineffective at the penalty phase. For one, when a lawyer is dead and unavailable, the Court presumes he was not ineffective. For another: "When we place ourselves in Knight’s position, which we must, we see the following: overwhelming evidence that his client committed a premeditated kidnapping, rape, and murder of a random victim, including a confession to the kidnapping and rape in which he concocted a prior sexual relationship with the victim, and insinuated his ex-wife was the real murderer; his client’s last two wives left him, in part, bexause he was physically abusive; his client had two previous convictions for assault with intent to murder, one of which arose from when he shot his own 11-year-old nice in the foot; his client’s past included no compelling mitigation evidence, such as mental health problems or physical abuse; and his client had already once been sentenced to death for the murder [in a sentence that was overturned and remanded]. Given the hand Knight was delath, we cannot say a decision to focus on mercy instead of mitigation was an unreasonable one."
Friday, October 07, 2005
Lee: Sufficient Mail Fraud Evidence
In U.S. v. Lee, No. 04-12485 (Oct. 5, 2005), the Court (Carnes, Pryor, Forrester b.d.) affirmed two defendants’ mail fraud convictions, but vacated one sentence on a double counting issue as to which the parties agreed.. The scheme involved writing checks on closed bank accounts.
The Court rejected the defendants’ challenge to the sufficiency of the evidence, finding that the letters the defendants wrote to their banks about their bank accounts were designed to further their scheme, that the letter written about foreclosure of their property were also designed to "obfuscate." The Court rejected the argument that the mailings were litigation documents which could not give rise to criminal liability. The Court distinguished U.S. v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002), pointing out that the documents at issue did not involve court filings, but third-parties, whom they were trying to influence as part of their scheme. Moreover, Pendergraft did not involve documents which evidenced an "intent to deceive." The Court recognized "the real public policy concerns in allowing litigation documents to form the basis for a mail fraud claim," but said "it cannot countenance mailng false claims clothed in legalese to lenders, with the intent of perpetrating or perpetuating a fraud, even where litigation is ongoing."
Turning to the Booker sentencing issues, the Court found no error as to one defendant where the district court stated on the record that it would have given the defendant the same sentence whether the Guidelines were mandatory or advisory. As to the other defendant, the Court found no error in denying her a continuance so that she could be sentenced post-Blakely, because counsel ultimately informed the court that the defendant was prepared to go forward on the appointed sentencing date.
The Court rejected a challenge to the loss amount calculation, finding the court’s estimate of the loss was supported by the evidence. The Court also rejected defendant’s argument that the sentence should have reduced because the scheme was interrupted when the victims refused to honor the bad checks. The Court noted that an interruption beyond the control of the defendant is not a basis for a sentence reduction.
The Court rejected the argument that the sentence should not have been enhanced based on the existence of ten or more victims because some of these victims were able to offset their losses. The Court concluded that despite the offset, the victims were still considered victims for Guidelines purposes.
Finally, the Court rejected a hearsay challenge to the admission of a bank letter warning the defendants of "potential bank fraud," finding that the letter was not admitted for its truth, but for the purpose of showing that the banks were aware that the transactions were wrongful and so informed the defendants. The Court also rejected the challenge to the testimony of a lawyer that the defendants’ actions were illegal, pointing out that this statement was elicited on redirect, in response to cross-examination which opened the door.
The Court rejected the defendants’ challenge to the sufficiency of the evidence, finding that the letters the defendants wrote to their banks about their bank accounts were designed to further their scheme, that the letter written about foreclosure of their property were also designed to "obfuscate." The Court rejected the argument that the mailings were litigation documents which could not give rise to criminal liability. The Court distinguished U.S. v. Pendergraft, 297 F.3d 1198 (11th Cir. 2002), pointing out that the documents at issue did not involve court filings, but third-parties, whom they were trying to influence as part of their scheme. Moreover, Pendergraft did not involve documents which evidenced an "intent to deceive." The Court recognized "the real public policy concerns in allowing litigation documents to form the basis for a mail fraud claim," but said "it cannot countenance mailng false claims clothed in legalese to lenders, with the intent of perpetrating or perpetuating a fraud, even where litigation is ongoing."
Turning to the Booker sentencing issues, the Court found no error as to one defendant where the district court stated on the record that it would have given the defendant the same sentence whether the Guidelines were mandatory or advisory. As to the other defendant, the Court found no error in denying her a continuance so that she could be sentenced post-Blakely, because counsel ultimately informed the court that the defendant was prepared to go forward on the appointed sentencing date.
The Court rejected a challenge to the loss amount calculation, finding the court’s estimate of the loss was supported by the evidence. The Court also rejected defendant’s argument that the sentence should have reduced because the scheme was interrupted when the victims refused to honor the bad checks. The Court noted that an interruption beyond the control of the defendant is not a basis for a sentence reduction.
The Court rejected the argument that the sentence should not have been enhanced based on the existence of ten or more victims because some of these victims were able to offset their losses. The Court concluded that despite the offset, the victims were still considered victims for Guidelines purposes.
Finally, the Court rejected a hearsay challenge to the admission of a bank letter warning the defendants of "potential bank fraud," finding that the letter was not admitted for its truth, but for the purpose of showing that the banks were aware that the transactions were wrongful and so informed the defendants. The Court also rejected the challenge to the testimony of a lawyer that the defendants’ actions were illegal, pointing out that this statement was elicited on redirect, in response to cross-examination which opened the door.
Monday, October 03, 2005
Ramirez. Booker plain error where court felt it had no discretion
In U.S. v. Ramirez, No. 04-12040 (Sept. 30, 2005), the Court (Tjoflat, Anderson & Birch) affirmed the defendants’ cocaine-trafficking convictions, but vacated the sentences, finding "plain error" under Booker.
Co-defendants Ramirez and Angulo-Quinones were arrested on the high-seas; they had been aboard a go-fast vessel which contained more than 400 kilos of cocaine. Over Angulo-Quinones’ objection, the district court admitted in evidence, during his cross-examination, the fact of his arrest for a prior incident also involving a go-fast vessel and large quantities of cocaine.
The Court rejected Ramirez’ challenge to the sufficiency of the evidence. The Court concluded that his presence in proximity to a large quantity of cocaine in clear view on board his vessel, coupled with his changing account of events, sufficed to convict.
The Court also rejected Ramirez’ argument that his case should been severed, because of the prejudicial impact of the admission of Angulo-Quinones’ prior arrest for a similar offense. The Court found that any prejudicial impact was mitigated by the judge’s limiting instruction.
The Court also found no basis for a mistrial in the trial court’s instruction to the jury, in response to a question from the jury during deliberations, that it need no concern itself with this question. The Court found the instruction proper in the circumstances.
The Court found no reversible error in the admission of Angulo-Quinones’ prior arrest for a similar crime. The evidence was introduced during cross-examination, and was sufficiently relevant to Angulo-Quinones’ denial of not being acquainted with an accomplice in both incidents, and to his intent for the instant offense.
The Court rejected the "double-counting" challenge to the Guideline increase in Angulo-Quinones’ sentence for being a captain of a vessel, and for being the "leader and organizer" of the offense. The Court noted that it has approved the imposition of both enhancements in like circumstances in U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003), and it rejected Angulo-Quinones’ attempt to distinguish this case on its facts, pointing out that Rendon did not require "specific facts" to be present for the two enhancements to be simultaneously applicable. Further, the district court correctly determined that Rendon controlled the double-counting challenge. However, because the Court was vacating the sentence under Booker, and because it could not be certaint that the district court would have given both enhancements in light of Booker, the Court instructed the district court to "revisit" the organizer/leader and captain of the boat enhancements
on remand.
Finally, the Court found plain error under Booker in the sentences. During sentencing, the district court said that it might have imposed a different sentence had it had "any discretion in this matter." Instead, the court said it felt bound by the Guidelines, and imposed sentences of 235 months and life on Ramirez and Angulo-Quinones, respectively. This showed plain error. The Court therefore vacated the sentences and remanded for resentencing. http://www.ca11.uscourts.gov/opinions/ops/200412040.pdf
Co-defendants Ramirez and Angulo-Quinones were arrested on the high-seas; they had been aboard a go-fast vessel which contained more than 400 kilos of cocaine. Over Angulo-Quinones’ objection, the district court admitted in evidence, during his cross-examination, the fact of his arrest for a prior incident also involving a go-fast vessel and large quantities of cocaine.
The Court rejected Ramirez’ challenge to the sufficiency of the evidence. The Court concluded that his presence in proximity to a large quantity of cocaine in clear view on board his vessel, coupled with his changing account of events, sufficed to convict.
The Court also rejected Ramirez’ argument that his case should been severed, because of the prejudicial impact of the admission of Angulo-Quinones’ prior arrest for a similar offense. The Court found that any prejudicial impact was mitigated by the judge’s limiting instruction.
The Court also found no basis for a mistrial in the trial court’s instruction to the jury, in response to a question from the jury during deliberations, that it need no concern itself with this question. The Court found the instruction proper in the circumstances.
The Court found no reversible error in the admission of Angulo-Quinones’ prior arrest for a similar crime. The evidence was introduced during cross-examination, and was sufficiently relevant to Angulo-Quinones’ denial of not being acquainted with an accomplice in both incidents, and to his intent for the instant offense.
The Court rejected the "double-counting" challenge to the Guideline increase in Angulo-Quinones’ sentence for being a captain of a vessel, and for being the "leader and organizer" of the offense. The Court noted that it has approved the imposition of both enhancements in like circumstances in U.S. v. Rendon, 354 F.3d 1320 (11th Cir. 2003), and it rejected Angulo-Quinones’ attempt to distinguish this case on its facts, pointing out that Rendon did not require "specific facts" to be present for the two enhancements to be simultaneously applicable. Further, the district court correctly determined that Rendon controlled the double-counting challenge. However, because the Court was vacating the sentence under Booker, and because it could not be certaint that the district court would have given both enhancements in light of Booker, the Court instructed the district court to "revisit" the organizer/leader and captain of the boat enhancements
on remand.
Finally, the Court found plain error under Booker in the sentences. During sentencing, the district court said that it might have imposed a different sentence had it had "any discretion in this matter." Instead, the court said it felt bound by the Guidelines, and imposed sentences of 235 months and life on Ramirez and Angulo-Quinones, respectively. This showed plain error. The Court therefore vacated the sentences and remanded for resentencing. http://www.ca11.uscourts.gov/opinions/ops/200412040.pdf
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