Hernandez: Sufficient evidence for drug conviction

In U.S. v. Hernandez, No 04-16663 (Dec. 27, 2005), the Court (Carnes, Hull & Pryor) rejected challenges to the sufficiency of the evidence, but, accepting the government’s confession of error, vacated a sentence for Booker error.
During a cocaine sting operation which took several days to prepare, Hernandez, who had not been involved in any of the events, appeared on the day of the transaction as a passenger in the vehicle driven by a purchaser of the drugs. Hernandez’ involvement, according to law enforcement (whose account was contradicted by defense witnesses) consisted solely of saying "nine and this," in response to a question about the money for the drugs (a response which didn’t make too much sense since the transaction involved $30,000+) and of saying "trainos de nosotros" ("bring us ours"), a comment which allegedly referred to drugs. Recognizing that the evidence could have been interpreted not to show guilt, the Court nevertheless affirmed Hernandez’ drug trafficking conviction. The Court noted that, on appeal, it gave every reasonably favorable inference to the government, and that the jury could have inferred guilt from Hernandez’ statements and his presence at the scene of the drug transaction. Moreover, the trial court did not abuse its discretion in not granting, post-verdict, a motion for a new trial, because this was not one of the "exceptional" cases in which the judge could overrule the jury’s verdict of conviction. The Court also rejected a Due Process challenge to its standard of review of sufficiency issues.
For the sentence, the Court noted that the district court had stated that it would have imposed a lower sentence had it not been bound by the Guidelines, and therefore committed Booker error in imposing the Guideline sentence. The sentence was vacated, for resentencing.

Gomez-Diaz: Right to Appeal despite appeal waiver

In Gomez-Diaz v. U.S., No. 04-11105 (Dec. 20, 2005), the Court remanded the case to the district court for an evidentiary hearing concerning whether the defendant was entitled to an appeal.
The defendant signed a plea agreement in which he waived most, but not all, issues on appeal. After sentencing, no notice of appeal was filed. The defendant brought a § 2255 proceeding, claiming that his lawyer was ineffective in failing to file a notice of appeal. The district court dismissed the action, on the ground that the defendant failed to identify any meritorious grounds for appeal.
Reversing, the Court pointed out that, under Supreme Court caselaw, the defendant need not show meritorious grounds for appeal, (1) if no notice of appeal despite a specific instruction by the defendant to his lawyer to file an appeal, or (2) if the attorney failed to consult with his client in order to determine whether the client wished to appeal. The Court therefore remanded the case to the district court for an evidentiary hearing to determine whether the defendant specifically requested an appeal, or whether the lawyer failed to determine his client’s wishes.

Maharaj: Vienna Convention Claim Fails

In Maharaj v. Dep’t of Corrections, No. 04-15669 (Dec. 15, 2005), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to life in prison for murder.
Procedurally, the Court declined to enter a stay in view of ongoing collateral proceedings in state court involving the Vienna Convention. The factors involved in such a determination did not weigh in the petitioner’s favor.
The Court held that the district court did not err in considering alleged Brady violations individually, instead of for their cumulative effect. Thus viewed, the Court found no error. For instance, the witholding of a potentially exculpatory polygraph test of the State’s lead witness was not a Brady violation, because defense counsel was sufficiently aware of the test to cross-examine the witness about it. Applying the deferential habeas standard of review, the Court found no error.
The Court also found no error in the failure to provide defense with the murder victims’ briefcase, finding that the defense could have subpoenaed these materials. The Court also noted that the contents of the briefcase were not "material" to the case.
The Court also found no reversible error in the failure of authorities to comply with the Vienna Convention. The Court noted that it was not bound by holdings of the International Court of Justice, and that there was no established Supreme Court precedent at odds with the State court holdings.

Diaz-Boyzo: Sufficient evidence of metamphetamine trafficking

In U.S. v. Diaz-Boyzo, No. 04-15629 (Dec. 14, 2005), the Court rejected a sufficiency of the evidence challenge to a conviction for metamphetamine trafficking.
The defendant claimed that he was merely present in a car when a drug deal was taking place. The Court, however, pointed out that the defendant rode with an accomplice who arranged a drug deal, watched the drug deal from the car, and had a firearm in his possession. Further, the jury was free to disbelieve exculpatory defense testimony. For similar reasons, the Court found sufficient evidence to support the defendant’s conviction of using a firearm in connection with a drug trafficking crime.

Baker. Murder evidence erroneously admitted but not always prejudicial

In U.S. v. Baker, No. 00-13083 (Dec. 13, 2005), the Court, in a 137-page opinion (Barkett, Marcus, George b.d.), affirmed the drug trafficking ("Boobie Boys") convictions and sentences of some defendants but reversed the convictions of others.
At trial, over defense objection, the government introduced evidence of prior murders, allegedly committed by defendants as members of a drug trafficking enterprise.
The Court noted that the trial court’s admission of a police officer’s testimony that his investigation "revealed" a defendant to have previously committed a murder violated the prohibition against hearsay, as well as Rule 404(b)’s prohibition against character evidence, since the murder was not temporally close to the charged offenses, and revealed no common modus operandi.
The district court also erred in the admission of hearsay evidence that one defendant had previously beat up his girlfriend.
The district court also erred in the admission of a police officer’s testimony that he "received information" about defendant committing murders. "The district court explained that it allowed this testimony because it believed that the statements were relevant not to prove their truth, but rather to explain how [the officer] conducted his investigation. We do not understand this reasoning." The Court pointed out that the only relevance of the hearsay was to show who committed the murders.
The district court also erred in admitting police testimony about what he learned when he arrived at the scene of a shooting. These statements were "unquestionably inadmissible hearsay."
The district court further erred in admitting testimony from a declarant, who later died, identifying his assailants. The statement was hearsay, and was not a dying declaration because it was not made believing death was imminent. Further, its admission violated Rule 404(b) because it involved a murder which was not "inextricably intertwined" with the charged offenses.
The district court also erred in admitting police testimony about what witnesses told him about another murder, and Miami Herald articles identifying the perpetrators. This was inadmissible hearsay. It also violated Rule 404(b) because it involved conduct which occurred "outside the temporal scope of all the charged crimes."
The district court did not err in admitting murder victims’ statements to their parents that they feared being killed by a defendant (they were killed). The statements were "present sense impression" statements, admissible under Rule 803(1), and they did not violate Rule 404(b) because these murders were connected with the modus operandi of the defendants’ drug business.
The district court did not err in admitting statements given to police by a witness to a murder, because defense counsel "invited" the error by cross-examining the police about statements made by the witness, and the non-responsive answer was then elaborated on by the police witness on re-direct. The defendants not represented by this defense counsel could raise a plain error challenge to the testimony, having not elicited the testimony themselves, but having not objected either.
The district court also erred in admitting evidence that one of the defendants was featured on the television show "America’s Most Wanted." This evidence was both inadmissible hearsay and "incredibly" inadmissible under Rule 404(b).
The district court also erred in not allowing the defense to cross-examine a government witness concerning the exculpatory portions of a witness statement. This ruling violated Rule 106, which allows a party to introduce a portion of an exhibit, or testimony, which ought to be considered with the portion introduced by the opposing party.
Reviewing the cumulative effect of the above errors on the trials of each defendant, the Court upheld convictions for the defendants as to whom the evidence of guilt was otherwise overwhelming, and reversed as to defendants for whom the evidence was "weak."
The Court rejected several defendants’ challenge to the sufficiency of the evidence, finding it sufficient to sustain their convictions.
Turning to several defendants’ challenge to the denial of their motion for severance, the Court noted that the prosecution’s case involved evidence regarding several murders carried out by one drug trafficking gang against another gang. The Court rejected this challenge, noting that most of the prosecution’s case involved evidence of drug trafficking, not murder, that the murders were linked to the drug trafficking activity, making them relevant to the case, and that most of the defendants were implicated in the murders. The "spillover effect" of the murder evidence was not sufficiently prejudicial to warrant a new trial.
Citing Deck v. Missouri, 125 S.Ct. 2007 (2005), the Court acknowledged that shackling of criminal defendants should "rarely" be used, but found that the defendants who were shackled were not entitled to a new trial. The Court pointed out that bunting draped around defense table prevented the jury from seeing the shackles.
The Court found no error in the district court’s denial of a motion for severance. Given the length of the trial, the trial court had a "legitimate" concern about scheduling the trial. In addition, one defendant had adequate time to "shop" for a new lawyer once it became apparent that his lawyer would not be able to represent him on the date of the scheduled trial.
Turning to sentencing issues, the Court found no error in imposing a sentence enhancement for murder based on hearsay testimony, noting that a sentencing court may consider any relevant information. The Court rejected a number of other challenges to sentences, including a plain error Booker argument, finding no evidence that the judge would have imposed a lesser sentence under an advisory regime.

Arias FRE 408 Applies in Criminal Cases

In U.S. v. Arias, No. 03-12185 (Dec. 12, 2005), the Court (Tjoflat, Barkett & Mills b.d.) upheld most convictions and sentences for defendants convicted of defrauding the Medicare program, but found one error, though harmless, in the failure to exclude evidence under Fed. R. Evid. 408, and reversed one conviction because the defendant was denied a jury instruction concerning his statute of limitations defense.
Rule 408 provides that evidence of compromise of a claim is not admissible. Over defense objection based on Rule 408, the trial court allowed the prosecution to introduce evidence that the defendant, in an administrative proceeding brought by the Florida Department of Health, had admitted certain allegations in order to avoid more formal proceedings and additional penalties. The government argued that Rule 408 does not apply in criminal proceedings, only in civil proceedings. Recognizing a circuit split on this issue, the Court ruled that Rule 408 does apply in criminal cases. The Court found support for its interpretation in the language of the rule, the advisory committee notes, and in the policy favoring settlements.
However, in light of the overwhelming evidence against this defendant, the Court found the Rule 408 error to be harmless.
The Court agreed with another defendant, who claimed that the district court improperly refused to instruct the jury on his withdrawal from the conspiracy defense, an error which affected his statute of limitations defense because the withdrawal occurred more than five years before the government charged him.
The Court noted that mere cessation of participation is not sufficient to establish withdrawal; the accused must also establish that he communicated his withdrawal either to his co-conspirators or to law enforcement.
Here, the defendant, a doctor, relied on a letter notifying Blue Cross/Blue Shield that he was no longer working at seeing patients on behalf of his co-conspirators fraudulent enterprise. Other evidence supported this termination, including subsequent cancellation letters. Viewing this evidence in the light most favorable to the defendant, and in light of the "extremely low" burden the defendant had to meet to be entitled to a jury instruction on his defense, it was error not to give it, and this error warranted a remand for a new trial.

Matthews: Rule 404(b) "turned on its head"?

In U.S. v. Matthews, 2005 WL 3291400 (Dec. 6, 2005), the Court (Tjoflat, Hill, Granade b.d.), on panel rehearing, vacated its prior published opinion which had reversed the defendant’s drug-trafficking conviction on the ground that evidence of a prior arrest was erroneously admitted in violation of Fed. R. Evid. 404(b). The Court otherwise reaffirmed its prior rejection of defendant’s other arguments.
At trial, the government relied solely on the testimony of co-conspirators who were testifying in exchange for sentence reductions. These witnesses testified that Matthews participating in an ongoing drug-trafficking conspiracy, and then obtructed justice by intimidating them while they were in jail.
The Court rejected the argument that wiretap evidence should have been excluded because the recordings were not sealed in accordance with 18 U.S.C. § 2518(8)(a). The Court noted that the recordings were sealed within two days of the expiration of the order authorizing interception, and held that this was a reasonable time within the meaning of the statute.
The Court also rejected the argument that one conversation among two conspirators in which Matthews’ name was mentioned should have been excluded because it was not in "furtherance of the conspiracy." The Court found that one could have concluded otherwise.
The Court also rejected the challenge to the sufficiency of the obstruction evidence. "The jury was, of course, free to infer that Matthews was merely passing on along news of [a former conspirator’s] unfortunate demise, reflecting on the fleeting nature of human existence, and sending greetings." But the jury could also have drawn other inferences from the references by Matthews in a letter to a conspirator about another conspirator’s execution when he began cooperating with the government.
Turning to the 404(b) issue, the Court noted that the evidence of the defendant’s 1991 conviction for drug trafficking was "relevant" to the charges for more recent drug trafficking, finding that a defendant’s not guilty plea places his intent at issue. The Court recognized that there was an eight-year gap between the prior conviction and the offenses charged in this case, but concluded that this did not make the prior evidence "too abstracted" to be sufficiently probative. The Court concluded that the evidence was not unduly prejudicial, finding that the government needed the evidence to establish the defendant’s intent.
[In a separate concurrence, Judge Tjoflat recognized that the 404(b) result was dictated by prior precedent, but called for the Court to reexamine this precedent, which had "turned Rule 404(b) on its head."].

Caldwell: Brother's sporting possession of firearm

In U.S. v. Caldwell, No. 05-12640 (Dec. 5, 2005), the Court affirmed a conviction and sentence imposed on a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).
The defendant claimed that he had found his brother’s firearm, which the brother used for sporting purposes, and had pawned it because he was aware that it was unlawful for him to possess it. The pawning was meant to dispossess the defendant of the fireaerm.
The Court rejected this challenge to the defendant’s conviction, pointing out that his defense fell short of what was required to establish a "necessity" defense.
The Court also rejected the defendant’s claim that he was entitled to a lower sentence under USSG § 2K2.1 because he possessed the firearm "solely for sporting purposes." The Court pointed out that it was the defendant’s brother who possessed the firearm for sporting purposes, not the defendant himself, who possessed the firearm to pawn it. The Court acknowledged cases in other circuits which had construed the Guideline more liberally, but the Court gave it a narrow application and found that Caldwell was not eligible for the lower sentence. The Court noted that the district court had found Caldwell’s reason for possessing the firearm unconvincing, pointing out that Caldwell never gave the pawn ticket to his brother, or the money he received from the pawn shop.

Talley: Guideline sentence not per reasonable

In U.S. v. Talley, No. 05-11353 (Dec. 2, 2005), the Court rejected the government’s argument that, post-Booker, a sentence within the guideline range is "per se reasonable," but held that a sentence is not unreasonable when the district court fails to mention or discuss all of the sentencing factors set forth in 18 U.S.C. § 3553(a).
Citing U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005), the Court stated that "an acknowledgment by the district court that it has considered the defendant’s arguments and the factors in section 3553(a) is sufficient." In Talley’s case, the district court satisfied this requirement when it stated at sentencing: "Based on all the facts and circumstances of this case, I think that the guidelines do produce a fair and reasonable sentence considering the factors set forth in 18, section 3553(a)." No further elaboration was necessary.
The Court rejected the government’s position that a Guideline sentence was "per se reasonable," but noted that "use of the Guidelines remains central to the sentencing process." The Court added: "ordinarily we would expect a sentence within the Guideline range to be reasonable."
Reviewing the sentence for "reasonableness," the Court noted that this was a deferential standard of review. "In our evaluation of a sentence for reasonableness, we recognize that there is a range of reasonable sentences from which the district court may choose, and when the district court imposes a sentence within the advisory Guidelines range, we ordinarily will expect that choice to be reasonable." In Talley's case, he could not point to anything that suggested that his low-end of Guideline sentence was unreasonable.

Grant: Full face value of counterfeit checks

In U.S. v. Grant, No. 04-12268 (Nov. 29, 2005), the Court upheld a loss amount calculation, for sentencing purposes for a defendant convicted of producing and possessing counterfeit corporate checks, which included the full face amount of checks found in the defendant’s possession.
The Court noted that the Guidelines direct courts to measure "intended loss." The Court noted authority in other circuits that one can assumed that a defendant intended to utilize the full face value of worthless checks. The Court analogized to credit card theft, in which it has held that the intended loss includes the total line of credit to which defendants have access. The Court further pointed to circumstantial evidence that Grant intended to utilize the full face value of the checks, and to Grant’s inability to point to countervailing evidence. In a footnote, the Court dismissed the impossibility of a defendant’s using the full face value of a counterfeit check (because the account had insufficient funds), noting that the defendant’s subjective intent governs the loss calculation under the Guidelines.

Rahim: 924(c) conviction for both bank robbery & carjacking

In U.S. v. Rahim, No. 05-11087 (Nov. 29, 2005), the Court upheld two convictions for 924(c) violations arising out of a bank robbery and a subsequent carjacking in an attempt to escape from the bank robbery. The Court rejected the argument that a single 924(c) conviction was possible, because the robbery and the carjacking were part of a single course of conduct. The Court sided with other circuits to have considered the issue in rejecting this interpretation of § 924(c). The Court also rejected a Double Jeopardy challenge to the twin convictions, pointing out that each § 924(c) conviction involved a fact which the other did not (one involved use of a firearm during a bank robbery, the other during a carjacking), and therefore satisfied the test of Blockburger v. U.S., 284 U.S. 299 (1932).
Finally, the Court rejected the argument that the defendant was incompetent at sentencing, agreeing with the district court that the defendant was faking mental incompetence to avoid being sentenced.