Eleventh Circuit Court of Appeals - Published Opinions

Monday, February 27, 2006

Johnson: Insufficient money laundering evidence

In U.S. v. Johnson, No. 04-10514 (Feb. 27, 2006), the Court affirmed convictions for perjury securities fraud, and some money laundering counts arising out of the fraud, but reversed other money laundering convictions because of insufficient evidence.
Certain money laundering convictions were based on 18 U.S.C. § 1957, which criminalizes engaging in a monetary transaction in property derived from specified unlawful activity. The Court affirmed these convictions, pointing out that the evidence showed that Johnson used 25 financial accounts to transfer millions of dollars of fraudulently obtained investor funds.
Other money laundering convictions were based on 18 U.S.C. § 1956(a)(2)(B)(i), which criminalizes tranfer money from the U.S. to outside the country with the intent to conceal illegal proceeds. The Court agreed with Johnson that there was insufficient evidence of intent to conceal. Reviewing the caselaw, the Court noted that "evidence of concealment must be subtantial." Thus, transfers of funds outside the country, while indicative of concealment, would not in and of themselves establish money laundering. Here, the transfer was between accounts bearing the correct name, with no evidence of concealment. Hence, the Court vacated these convictions.
Finally, another convictions was based on 18 U.S.C. § 1956(h) which criminalizes money laundering conspiracy. After the trial, Johnson was the only defendant who was convicted of conspiracy: his alleged co-conspirator was acquitted. The Court noted that Johnson’s conviction could stand notwithstanding his co-conspirator’s acquittal, because consistency among jury verdicts is not required. However, the evidence failed to show that the co-conspirator was aware of the illegal source of the money that was transferred. Thus, there was no evidence that this co-conspirator conspired with Johnson to commit money laundering. Without this evidence, there was no proof of agreement between the two to commit a crime. Accordingly, the Court vacated this conviction.

Friday, February 24, 2006

Greer (no change in outcome on rehearing)

In U.S. v. Greer, No. 05-11295 (Feb. 24, 2006), on rehearing, the Court reissued a new opinion again affirming the defendant’s conviction for illegal possession of a firearm as a convicted felon, and on a government cross-appeal of the sentence, agreeing again with the government that the district court erroneously failed to impose the sentence mandated under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1).
The Court rejected Greer’s challenge to the sufficiency of the evidence, pointing out that there was evidence that Greer lived in the house in which ammunition was found. The Court also rejected Greer’s challenge to venue, finding that venue was correct. Since there was no merit to these arguments, the Court also rejected Greer’s claim that his trial lawyer was ineffective in failing to raise them.
Turning to the sentence, the sentencing court recognized that Greer, as a three-time convicted felon, qualified for the 15-year minimum sentence of § 924(e). The sentencing court also noted that, based on the indictments in those cases, the convictions met the "violent" definition of qualifying offenses. However, based on recent Supreme Court precedent, the sentencing court believed it could not impose a sentence based on facts not found by a jury.
The Court found that the sentencing court erred in so reasoning. The Court pointed out that under Almendarez-Torres v. U.S., 523 U.S. 224 (1998) – which has not been overruled – a prior conviction can be considered by a sentencing court notwithstanding its non-consideration by a jury. The Court noted its own recent precedent reaffirming the vitality of Almendarez-Torres, The Court noted that, implicit in Shepard v. U.S. is a recognition that charging documents could be considered to make a determination about prior qualifying convictions. Shepard’s limitation on the kinds of documents that could be considered did not help Greer, because the violent nature of his prior convictions was clear from the certified copy of the conviction document read along with the indictment and in light of the statutory elements of the offense. The Court recognized that it is "probably" is correct to predict the demise of Almendarez-Torres, but it was not its role to base decisions on probable Supreme Court decisions.

Thursday, February 16, 2006

DeVegter: Bonuses dont' count in bribery Guideline Calculation

In U.S. v. Devegter, No. 04-14075 (Feb. 16, 2006), the Court agreed with the government that the district court erred in calculating a sentence under the commercial bribery guideline, USSG § 2B4.1.
The bribery guideline provides that the severity of sentence is based on either the amount of the bribe or the net value of the improper benefit conferred as a result of the bribe. The district court noted that some of the benefit from the bribe was paid out by the beneficiary (Lazard Freres & Co.) in the form of bonuses to its employees at year’s end. The district court, finding that these bonuses were a cost which reduced the value of the benefit from the bribe, and that the government failed to pinpoint the cost amount to be deducted, reasoned that the sentence could not be fairly calculated based on a benefit, but should be based on the amount of the bribe.
The Court reversed. Finding that the amount of bonuses is merely a "variable" and "indirect" cost to Lazard, the Court found that the "inherent difficulty" in calculating it should take it outside the realm of the direct costs that should be subtracted from profits in determining the net improper benefit. The Court held that the full benefit of the bribe, without taking account of the bonuses, should be the basis for the sentence.
The Court also reversed downward departures based on the combination of aberrant behavior, physical condition, and family circumstances. The Court found that the defendant’s "repeated acts of wrongdoing" undermined a finding of aberrant behavior. The Court further found that the defendant’s physical condition had healed. Finally, while noting the special family circumstances of the defendant, the Court pointed out that departures on this basis was not permitted under the Guidelines.

Tuesday, February 14, 2006

Yates: Video Conferencing violates Sixth Amendment

In U.S. v. Yates, No. 02-13654 (Feb. 13, 2006), the Court (en banc) held that two-way video-conferencing to present the testimony of prosecution witnesses in Australia violated the defendants’ Sixth Amendment Confrontation Clause rights.
The Court stated: "The simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation. . . . The Sixth Amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium." The Court held that the government’s need to present the testimony was not the type of policy concern that could override the Sixth Amendment. There was no "necessity" to present the testimony through video conferencing, because the deposition alternative of Fed. R. Crim. P. 15 was available (at which a defendant has the right to be present), and the government did not seek a Rule 15 deposition.
The Court rejected the argument that the evidence was insufficient as a matter of law without the video testimony. Further, Double Jeopardy did not bar a retrial, as the reversal was not grounded on insufficiency of the evidence. (Tjoflat, Birch & Marcus dissented).

Nash: Supervised Release Can't Fully Delegate to Probation

In U.S. v. Nash, No. 05-11440 (Feb. 13, 2006), the Court agreed with the defendant that the district court erred in delegating to a probation officer the judicial task of determining whether he should participate in a mental health program, but otherwise affirmed the sentence.
Citing U.S. v. Heath, 419 F.3d 1312 (11th Cir. 2005), the Court held invalid the condition of supervised release which delegated to the Probation Office to task of determining whether the defendant should participate in a mental health program. The Court noted that imposing sentence is an Article III court’s responsibility. Only the court, not the probation office, can decide whether the defendant should participate in mental health counseling.
The Court upheld the condition of supervised release which delegated to the Probation Office the task of approving the bank accounts Nash could open (Nash was convicted of fraud). The Court noted that this was merely a ministerial task. The Court also affirmed the condition which required Nash, subject to the probation office’s direction, to notify persons of the risk associated with her criminal history. The Court explained that this condition did not delegate unfettered discretion to the probation office, but merely found that the probation office would decide when notice was appropriate. The Court also rejected Nash’s argument that this condition was vague and overbroad. The Court found that this condition was reasonably related to the goal of preventing Nash’s future fraud.

Monday, February 13, 2006

Nix: Civil Rights not restored to avoid 922(g)

In U.S. v. Nix, No. 04-13397 (Feb. 9, 2006), the Court rejected the defendant’s argument that his conviction for being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) should be vacated, because he fell under one of the § 921(a)(20) exceptions. The defendant claimed that because his Alabama state drug trafficking conviction – the felony offense which supported the § 922(g)(1) prosecution – never caused him to lose his right to possess a firearm under Alabama law, his situation was akin to a defendant whose civil rights had been restored following a conviction, and who was therefore not liable under § 922(g)(1).
The Court pointed out that the § 921(a)(20) exception applied to persons whose civil rights have been restored. Nix, even though he never lost the right to possess a firearm as a result of his Alabama conviction, did lose other civil rights, and these rights were not restored at the time he possessed the firearm that triggered the federal § 922(g) prosecution. The Court distinguished cases involving other States, where the defendant’s civil rights were automatically restored upon completion of sentence. Here, Nix had lost civil rights as a result of his Alabama conviction, and none of the rights he had lost had been restored when he was caught with firearms.

Friday, February 10, 2006

Rolling v. Crosby: Attorneys Reasonably Believed Alachua County was good place for death sentencing

In Rolling v. Crosby, No. 05-14252 (Feb. 9, 2006), the Court affirmed the denial of federal habeas relief to a defendant sentenced to death for the 1990 homicides in Gainsville, Florida, of five students.
The Florida Supreme Court had previously rejected Rolling’s claim that counsel was ineffective for not seeking a change of venue, out of Gainsville, until after jury selection commenced, at which time counsel becaume convinced that the jury was likely to recommend a sentence of death. The Florida Supreme Court relied on counsel’s statements that they initially thought Gainsville was a good place for a trial, given the well-educated community in Alachua County. This finding was entitled, post-AEDPA, to deference unless it was "unreasonable." The Court noted that the lawyers’ judgment was based on years of experience in criminal defense.

Pratt: Search warrant has content despite its non-existence

In U.S. v. Pratt, No. 04-15168 (Feb. 8, 2006), the Court affirmed the denial of a motion to suppress. The motion was based on the fact that the search was lost after its execution. The defendant, citing Groh v. Ramirez, 540 U.S. 551 (2004) (search warrant itself, not its supporting documentation, is scrutinized for compliance with the Fourth Amendment’s particularity requirement), argued that the non-existence of a search warrant conclusively established that a search was warrantless and therefore invalid. Rejectingthis argument, the Court noted that the existence vel non of a search warrant was not at issue in Groh. Further, in this case, there was evidence supporting the warrant’s particularity, namely, the testimony of the issuing judge that he "always makes sure" that the requested warrant matches the affidavit in support, and that he did so in Pratt’s case. Thus, since the affidavit satisfied the particularity requirement, the search warrant did too, and no Fourth Amendment violation occurred.
The Court also rejected a Booker error challenge to the sentence, pointing out that the district court stated at sentencing that it would impose the "same sentence" even if the Guidelines turned out (post-Booker) not to be binding.

Williams: Sentence "in violation of law" when court gives no reasons for it

In U.S. v. Williams, No. 04-14350 (Feb. 8, 2006), the Court affirmed a conviction and rejected four of five challenges to the sentence. However, the Court agreed with the defendant that the district court erred, when imposing sentence, in failing to comply with 18 U.S.C. § 3553(c)(1), which requires the court, at the time of sentencing, "to state in open court the reasons for its imposition of the particular sentence, and, if the sentence . . . exceeds 24 months, the reason for imposing a sentence at a particular point within the [Guideline] range."
The Court rejected the government’s argument that this error was subject only to "plain error" review. Citing U.S. v. Veteto, 920 F.2d 824 (11th Cir. 1991), the Court noted that failure to comply with the statement of reasons requirement of § 3553(c)(1) results in a sentence imposed "in violation of law." "Here the trial court offered no reason for the life sentence it elected to impose upon 26-year old Williams." The Court therefore remanded the case to the district court.

Sharpe: Rule 12 dismissal must be based on face of the indictment, not trial evidence

In U.S. v. Sharpe, No. 05-11553 (Feb. 7, 2005), the Court, on a government appeal, reversed the district court’s grant of a post-trial motion to dismiss an indictment, pursuant to Fed. R. Evid. 12(b)(3)(B) for failure to state an offense.
The defendant, after the jury’s conviction, made untimely Rule 29 motions for judgment of acquittal. The district court converted the motions into Rule 12(b) motions to dismiss the indictment, and granted them. However, in so ruling, the district court "considered the overall sufficiency of the evidence presented by the government at trial," when it should have determined the sufficiency of the indictment from "the face of the indictment."
The Court reviewed the allegations of the indictment, and concluded that they sufficed to allege mail fraud.

Friday, February 03, 2006

Jackson: 60(b) motion cannot get a second chance at appeal

In Jackson v. Crosby, No. 04-15992 (Feb. 2, 2006), the Court denied a motion for reconsideration of an earlier order denying a motion for a certificate of appealability.
The petitioner untimely sought relief in the district court from an order denying a petition for federal habeas relief. The appeal from that order was dismissed on jurisdictional grounds. The petitioner then filed a motion under Fed. R. Civ. P. 60(b), asking the district court to take action so that he could seek appellate review of the earlier order. The district court denied relief, citing Gonzalez v. Dep’t of Corrections, 366 F.3d 1253 (11th Cir. 2004) (en banc) (district courts lack jurisdiction to consider 60(b) motions as a basis for reconsidering the denial of habeas relief). A certificate of appealability was denied by both the district court, and by the Court of Appeals. The petitioner then sought reconsideration of the latter order, pointing that the United States Supreme Court had overruled Gonzalez. See 125 S.Ct. 2641.
Denying reconsideration, the Court acknowledged that the Supreme Court’s decision in Gonzalez, which held that 60(b) motions could be a basis for reopening denials of habeas relief, undermined the stated basis for the district court’s original denial of Rule 60(b) relief. However, the petitioner’s motion failed for a separate reason: namely that Rule 60(b) cannot be used to obtain a second chance at a timely appeal.

Wednesday, February 01, 2006

Schier: No Speedy Trial Act Violation

In U.S. v. Schier, No. 05-11838 (Jan. 31, 2006), the Court (Dubina, Hull, Marcus), reviewing the conviction of a defendant of possessing a concealed dangerous weapon – an icepick – on an aircraft, rejected Speedy Trial Act violations and challenges to the sufficiency of the evidence.
The defendant claimed that the Speedy Trial Act was violated, because the trial commenced within 30 days of the issuance of the second superseding indictment, in violation of 18 U.S.C. § 3161(c), which provides that a trial shall not commence less than 30 days from the date on which the defendant first appears through counsel. The Court pointed out that in U.S. v. Rojas-Contreras, 474 U.S. 231 (1985), the Supreme Court held that the 30-day trial preparation period did not begin to run (again) from the date of filing a superseding indictment. Here, the timing of the trial did not violate the Act.
The Court also found sufficient evidence to sustain the conviction, noting that Schier conceded during her testimony that she tried to hide the icepick while on the plane, testimony confirmed by two fellow passengers.
The Court also rejected challenges under the Jencks Act, noting that the Act does not apply to the statements of non-testifing witnesses, and further, that counsel did not request production of other notes, as required by 18 U.S.C. § 3500(b).

Rutherford: Successive Habeas Claims Fail

In In Re Rutherford, No. 06-10784 (Jan. 30, 2006), the Court denied Rutherford’s Application for Permission to File a Successive Habeas Petition. The Court noted that the claims which could be brought in a successive petition were limited by § 2244(b)(2)(A)-(B) of AEDPA. Here, none of Rutherford’s claims could satisfy this statute’s standard. Some had been previously rejected by the Florida Supreme Court, and Rutherford could not show that the facts underlying his claims were such that "no reasonable factfinder would have found [him] guilty." Others relied on cases which were procedurally barred, and which had not been made retroactively applicable by the Supreme Court.

Gonzalez-Lauzan: No Miranda violation post "Okay you got me"

In U.S. v. Gonzalez-Lauzan, No. 04-12536 (Jan. 30, 2006), the Court (Hull, Marcus, Hill) held that a defendant’s Miranda and Sixth Amendment rights were not violated.
After the defendant was arrested and charged with murder, and while he was incarcerated on a separate case, the police interviewed him. The officers decided not to administer Miranda warnings at the beginning of the meeting, deciding instead to describe the evidence they had against the defendant, in the hope that he would talk about his participation in the offense. They would only give Miranda warnings if it became apparent that the defendant would be willing to make a custodial statement.
Two and a half hours into the meeting, during which the police instructed the defendant to listen and said they had no questions, and during which they waited for the defendant to see if there was a response, the defendant stated suddenly: "Okay, you got me." The police then read the defendant his Miranda rights, and the defendant agreed in writing to waive these rights, and then made "multiple incriminating statements."
The district court agreed with the defendant that the statement "Okay, you got me," should be suppressed, but allowed all the post-Miranda warning statements to be admitted. On appeal, the Court affirmed.
The Court noted that the two most relevant cases were Oregon v. Elstad, 470 U.S. 298 (1985) (despite initial failure to give Miranda warnings, postwarning confession is admissible where subsequent statement was voluntarily made), and Missouri v. Seibert, 542 U.S. 600 (2005) (confession inadmissible where police deliberately gave defendant Miranda warnings only after interrogating her and drawing out a confession). The Court found that the confession was admissible regardless of which case applied. Even under Seibert, the multi-factor test adopted by the 4-Justice plurality indicated that the confession was admissible, because the defendant gave no answers during the prewarning session, which suggests that the latter warnings were effective. Further, the only incriminating post-warning statement was "okay, you got me." In addition, it remained reasonable for the defendant to decline to make statements after being given warnings, because he said very little during the pre-warning session. Although other factors weighed in the defendant’s favor – namely, the pre- and post-warning questioning was continuous in time and place – they carried little weight in light of the defendant’s silence during the first phase of the interview.
Moreover, Justice Kennedy’s concurrence in Seibert focused on whether police engaged in a "strategy" which undermined Miranda. This – arguably the case’s narrowest holding – was not present here, because police did not ask the defendant a single question during the first phase.
The Court also rejected the Sixth Amendment challenge. Though the defendant had counsel on another case, this did not mean he had counsel on this case, as the Sixth Amendment right is "offense specific." Further, the defendant never invoked his right to counsel during the interview, thereby waiving his post-warning right. http://www.ca11.uscourts.gov/opinions/ops/200412536.pdf

Britt: Levy waiver applies on remand from S. Ct. for Booker consideration

In U.S. v. Britt, No. 04-10151 (Jan. 26, 2005), the Court, on remand from the Supreme Court for reconsideration in light of Booker, the Court held that based on U.S. v. Levy, 416 F.3d 1273 (11th Cir. 2005), it need not address any Booker error in the sentence, because the defendant raised the issue for the first time in his reply brief, thereby waiving the issue, as Booker claims had to be raised in the initial brief in order to be preserved for appellate review.

Sweeting: Consecutive sentences for same supervised release violation

In U.S. v. Sweeting, No. 05-11062 (Jan. 26, 2005), the Court (Dubina, Marcus, Wilson) held that the district court did not abuse its discretion to impose sentence for a violation of a condition of supervised release when it imposed a second two-year consecutive sentence, in addition to a three-year consecutive sentence, for the same conduct (conviction for crack cocaine distribution) which constituted a violation of his conditions of supervised release in two separate, unrelated cases.
The Court noted that post-Booker, it applied a "reasonable sentence" rather than the earlier "plainly unreasonable" standard of review to supervised release violation sentences.
The Court noted that the two-year term was within the statutory maximum for a supervised release violation. Further the sentencing court took account of Sweeting’s criminal history and threat to society. Thus, the sentence was within the sentencing court’s discretion.http://www.ca11.uscourts.gov/opinions/ops/200511062.pdf