In U.S. v. Spears, No. 04-13297 (March 30, 2006), the Court affirmed the imposition of a sentence based on three prior qualifying convictions under the Armed Career Criminal Act.
The Court rejected the argument that two prior robberies should have only been counted as one. After the defendant went to a local park to rob two persons, and committed the robberies, on his way back to his car he spotted another person, and robbed this person. The Court held that this constituted two robberies. The first robbery was complete when the defendant decided to rob anew.
The Court also found no plain error under Apprendi and its progeny in the judge making the determination that two, not just one, robberies occured. The Court noted that the fact of a prior conviction remains within the fact-finding of a judge.
The Court also rejected the argument that one conviction should not count because the defendant was just 17 years old when he committed it. The Court pointed out that Spears was tried as an adult for this offense.
The Court also rejected the argument that adjudication had been withheld for one prior conviction, pointing out that adjudication of guilt was ultimately imposed when the defendant violated his probation.
Friday, March 31, 2006
Thursday, March 30, 2006
Harris: Waiver of PSI invited error
In U.S. v. Harris, No. 05-10160 (March 24, 2006), the Court held that the failure of the district court to satisfy Fed. R. Crim. P. 32(c)(1)(A)(ii) in not inquiring whether the informatoin in the record allwed the court to exercise its sentencing authority in imposing an 80-month sentence did not constitute reversible error. The Court noted that the defendant’s counsel answered "yes, your honor," when asked if Harris was waiving his right to a PSI and willing to proceed to sentencing. This constituted "invited error," and meant there was no reversible error.
de la Cruz: international waters jurisdiction
In U.S. v. de la Cruz, No. 04-15193 (March 27, 2006), the Court held that jurisdiction under 46 U.S.C. App. § 1903 was established over a vessel seized with 1800 kilos of cocaine in international waters. The vessel in question flew no flag, carried no registration paperwork, and bore no markings indicating its nationality. The vessel’s captain concealed himself. Hence, the vessel qualified as one "without nationality" under section 1903.
The Court also found that the defendant failed, under U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir 1999) to establish clear error in the denial of a minor role sentence reduction, in view of the fact that he was paid for his efforts, and participated in prior maritime drug smuggling activities.
The Court also found that the defendant failed, under U.S. v. Rodriguez de Varon, 175 F.3d 930 (11th Cir 1999) to establish clear error in the denial of a minor role sentence reduction, in view of the fact that he was paid for his efforts, and participated in prior maritime drug smuggling activities.
Wednesday, March 29, 2006
Rainey: Habeas Petition Time Barred
In Rainey v. Secretary for Dep’t of Corrections, No. 04-13282 (March 29, 2006), the Court affirmed the denial of a § 2254 habeas petition as time-barred under the one-year limitations period of AEDPA.
The defendant’s federal habeas petition was filed within one year of his state resentencing, but more than one year after his original judgment of conviction became final. The habeas petition, however, challenged only the original conviction, not the resentencing. The Court held that the applicable one-year period began to run from the date of the original judgment because the petition only challenged the original judgment. For purposes of Rainey’s petition, the relevant judgment became "final"on the date the original conviction became final, without regard to the subsequent resentencing.
The Court rejected the argument that equitable tolling should apply to the period during which a post-conviction motion was pending before being dismissed for failure to comply with Florida’s oath requirement. The Court noted that Rainey let the motion sit unaddressed for seven months. He did not demonstrate the "extraordinary" circumstances which justify a finding of equitable tolling.
The defendant’s federal habeas petition was filed within one year of his state resentencing, but more than one year after his original judgment of conviction became final. The habeas petition, however, challenged only the original conviction, not the resentencing. The Court held that the applicable one-year period began to run from the date of the original judgment because the petition only challenged the original judgment. For purposes of Rainey’s petition, the relevant judgment became "final"on the date the original conviction became final, without regard to the subsequent resentencing.
The Court rejected the argument that equitable tolling should apply to the period during which a post-conviction motion was pending before being dismissed for failure to comply with Florida’s oath requirement. The Court noted that Rainey let the motion sit unaddressed for seven months. He did not demonstrate the "extraordinary" circumstances which justify a finding of equitable tolling.
Tuesday, March 28, 2006
Perez: Alien Smuggling Convictions Affirmed
In U.S. v. Perez, No. 05-12404 (March 21, 2006), the Court affirmed the defendant's convictions, following a bench trial, on multiple counts of bringing aliens to the United States. Briefly, Mr. Perez and his co-defendant, Mr. Valdez, came across a disabled boat at sea that contained a captain and six passengers. Perez and Valdez asked what the people were doing, and the captain said they had been fishing. Perez and Valdez asked for identification and most of the passengers showed them Florida driver's licenses. Perez and Valdez then offered to take the people ashore, a trip that lasted just two hours. As Perez and Valdez docked the boat at Matheson Hammock Marina at 1 a.m. a police officer who had been watching them approached the men after the boat was on a trailer and asked for identification. The officer asked what they had been doing and if they were alright. Valdez informed the officer that the truck and boat were his and showed the truck's registration to the officer. Perez and the officer boarded the boat to find the boat registration and the officer found six Cuban nationals on board. Following a bench trial, Valdez was acquitted on all counts, Perez was acquitted on a conspiracy count but convicted on the six substantive alien smuggling counts.
In affirming the convictions, the Court first rejected a claim that the Police had violated the Fourth Amendment during the questioning and search. The Court reasoned that the encounter was purely consensual and thus held that there was no Fourth Amendment violation. The Court next rejected a claim that the district court had improperly considered Perez' prior alien smuggling conviction. The Court held that despite Perez' stipulation as to intent, the 404(b) evidence was admissible to show knowledge and intent. Finally, the Court affirmed the sufficiency of the convictions holding that the circumstantial facts of the case coupled with Perez' previous alien smuggling conviction were sufficient to demonstrate that Perez "conducted himself 'knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States.'"
In affirming the convictions, the Court first rejected a claim that the Police had violated the Fourth Amendment during the questioning and search. The Court reasoned that the encounter was purely consensual and thus held that there was no Fourth Amendment violation. The Court next rejected a claim that the district court had improperly considered Perez' prior alien smuggling conviction. The Court held that despite Perez' stipulation as to intent, the 404(b) evidence was admissible to show knowledge and intent. Finally, the Court affirmed the sufficiency of the convictions holding that the circumstantial facts of the case coupled with Perez' previous alien smuggling conviction were sufficient to demonstrate that Perez "conducted himself 'knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States.'"
Moore: Timing of supervised release summons
In U.S. v. Moore, No. 04-16555 (March 22, 2006), the Court affirmed an eighteen-month sentence for a violation of supervised release. In a case proving that timing is everything, the Court ruled that the district court issued a valid summons for violation of supervised relase, under 18 U.S.C. § 3583(i), on the last day of the defendant's five-year term of supervised release. Specifically, the district court ordered issuance of the sumons on June 9, 2004, the same day the probation office petitioned the court to issue a summons. On June 10, 2004, the last day of Moore's five-year term of supervised release, the clerk of court signed a summons for Moore's appearance. The Court affirmed the district court's finding that the summons was issued on June 10, 2004 and that the district court thus had jurisdiction. The Court also rejected arguments that the district court considered improper evidence or that it abused its discretion in imposing an eighteen-month sentence.
Eldick: Healthcare Fraud
In U.S. v. Eldick, No. 05-13006 (March 22, 2006), the Court affirmed a 180-month sentence imposed after Eldick entered a plea of guilty to one count of healthcare fraud and one count of unlawful distribution of hydrocodone. The sentence consisted of consecutive maximum sentences for each count (120 as to count one and 60 as to count two). The Court rejected Eldick's argument that the language in his plea agreement, entered into pre-Booker, that the Sentencing Guidelines would apply at sentencing prohibited the district court from treating the guidelines as merely advisory and sentencing up to the statutory maximum. The Court also rejected a reasonableness challenge to the sentence imposed even though the guidelines range was 87 to 108 months. The district court found that Eldick, who fraudulently posed as a doctor, victimized over 800 individuals including a woman who was given a pelvic exam and others who claimed that Eldick's misdiagnosis or mistreatment resulted in the death of a loved one. The Court also rejected a claim of vindictive sentencing. Eldick's original sentence of 242 months' imprisonment had been reversed by the 11th Circuit.
Harris: Invited Error to Sentence without record reasons
In U.S. v. Harris, no. 05-10160 (March 24, 2006), the Court affirmed an 80-month sentence following a guilty to a charge of possession with intent to distribute five or more grams of crack cocaine. The 80-month sentence was jointly recommended and imposed without the benefit of a presentence investigation report. The Court held that the district court failed to comply with Fed. R. Crim. P. 32 which allows for a sentencing without a PSI but which requires that the district court to explain on the record that the information in the record enables it to meaningfully exercise its sentencing discretion under 18 U.S.C. § 3553. Here, the district court merely stated that it was inclined to accept the recommended sentence. However, under the invited-error doctrine, the Court ruled that counsel for Harris waived the PSI and that the waiver invited any error that may have occurred.
Massey: Obstruction of Justice Enhancement Affirmed
n U.S. v. Massey, No. 05-11514 (March 23, 2006), the Court affirmed an 87-month sentence following a guilty plea to conspiracy to import 100 grams or more of heroin and assault on a federal officer. However, the Court vacated the judgment and remanded for the limited purpose of correcting a clerical error in the judgment. In affirming the sentence, the Court rejected Massey's claim that the district court improperly adjusted her guidelines calculation by including an upward adjustment for obstruction of justice. Massey claimed that she did not wilfully obstruct justice and that any obstruction was not sufficiently material to warrant the adjustment. Massey was one of three women suspected of being internal drug smugglers from Ecuador. All three were taken to the hospital. Massey refused to have anything removed from her vaginal canal. At the hospital, Massey was physically and verbally abusive to medical staff and law enforcement officers. Eventually, Massey, while attempting to remove an object herself, ripped the object and went into medical distress caused by the heroin that had leaked inside her. She went into respiratory arrest and was placed on a respirator. She eventually recovered. A search of her hospital room revealed that she had previously removed two other objects, containing heroin, and had hidden them in her pillow. She had also ripped a hole in her mattress. At sentencing, Massey argued that she suffered from a bipolar disorder and that she had not receive her medication while at the hospital. She thus argued that as a result of her un-medicated bipolar disorder and heroin overdose, her actions at the hospital were not willful. She also argued that her actions in hiding the two objects in the bed she was handcuffed to did not material hinder the investigation of her offense because their discovery was inevitable and the information was already known based on x-rays taken before she removed any objects. Reviewing for clear error, the Court rejected both arguments.
Molina: More than mere presence in drug trafficking
In U.S. v. Molina, No. 04-13114 (March 24, 2006), the Court reversed the judgment of acquittal entered by the district court after the jury convicted Molina of drug trafficking conspiracy and possession of a firearm in furtherance of a drug-trafficking crime.
Molina was arrested when DEA agents entered her home, and found "substantial evidence of a drug conspiracy," including a digital scale, a bag of cocaine, a firearm, and stashes of money. The district court’s acquittal was based on the conclusion that Molina was merely present in the vicinity of drugs, and on the testimony of her husband, a drug trafficker, that Molina was "unaware" of the drugs or of the drug trafficking.
Reversing, the Court noted that the evidence of a drug scale in plain view, the firearm in the open drawer of a nightstand in proximity to Molina’s passport, and her statement on arrest that she was asked by a co-conspirator to store drugs, and evidence suggesting Molina hid the drugs in a bathroom in the minute or two it took police to enter the residence after they announced their presence, was more than sufficient to sustain the conspiracy conviction. The evidence also supported her constructive possession of the firearm. Further, the district court should not have credited her husband’s account, because this story, which had inconsistencies, should have been viewed, after the jury’s conviction, in the light most favorable to the prosecution.
Molina was arrested when DEA agents entered her home, and found "substantial evidence of a drug conspiracy," including a digital scale, a bag of cocaine, a firearm, and stashes of money. The district court’s acquittal was based on the conclusion that Molina was merely present in the vicinity of drugs, and on the testimony of her husband, a drug trafficker, that Molina was "unaware" of the drugs or of the drug trafficking.
Reversing, the Court noted that the evidence of a drug scale in plain view, the firearm in the open drawer of a nightstand in proximity to Molina’s passport, and her statement on arrest that she was asked by a co-conspirator to store drugs, and evidence suggesting Molina hid the drugs in a bathroom in the minute or two it took police to enter the residence after they announced their presence, was more than sufficient to sustain the conspiracy conviction. The evidence also supported her constructive possession of the firearm. Further, the district court should not have credited her husband’s account, because this story, which had inconsistencies, should have been viewed, after the jury’s conviction, in the light most favorable to the prosecution.
Friday, March 17, 2006
Brehm: Safety Valve conditions still binding post Booker
In U.S. v. Brehm, the Court affirmed the defendant’s heroin trafficking sentence.
The Court rejected the defendant’s argument that he should have been permitted to withdraw his guilty plea, on the ground of mental incompetence. The Court noted that it appeared that Brehm had a factual and rational understanding of the legal process. Further, he did not seek to withdraw his plea until several months after pleading guilty.
The Court also rejected the argument that post-Booker the safety valve statute, 18 U.S.C. § 3553(f), became advisory, and that the district court had discretion to depart below the mandatory minimum. Citing U.S. v. Barrero, 425 F.2d 154 (2d Cir. 2005), the Court held that even after Booker courts are required to calculate Guideline provisions, and that the provision of § 3553(f) which renders a Criminal History Category I defendant ineligible for the safety valve remains binding. Since Brehm was Criminal History I, he was safety valve ineligible.
The Court rejected the defendant’s argument that he should have been permitted to withdraw his guilty plea, on the ground of mental incompetence. The Court noted that it appeared that Brehm had a factual and rational understanding of the legal process. Further, he did not seek to withdraw his plea until several months after pleading guilty.
The Court also rejected the argument that post-Booker the safety valve statute, 18 U.S.C. § 3553(f), became advisory, and that the district court had discretion to depart below the mandatory minimum. Citing U.S. v. Barrero, 425 F.2d 154 (2d Cir. 2005), the Court held that even after Booker courts are required to calculate Guideline provisions, and that the provision of § 3553(f) which renders a Criminal History Category I defendant ineligible for the safety valve remains binding. Since Brehm was Criminal History I, he was safety valve ineligible.
Wednesday, March 15, 2006
Dohrmann: 2241 petitioner must show "cause & prejudice"
In Dohrmann v. U.S., No. 05-15360 (March 15, 2006), the Court held that an inmate could not raise in a habeas petition under 28 U.S.C. § 2241 a claim that the restitution amount was incorrectly calculated, when the petitioner failed to show "cause and prejudice" for his failure to raise this issue in the earlier proceeding, or on direct appeal.
Joining the holdings of all other Circuits to have considered the question, the Court held that Apprendi v. New Jersey does not apply to restitution orders. The Court pointed out that the federal restitution statutes do not contain statutory maximums. Consequently, Apprendi’s holding concerning the constitutional principles applicable to statutory maximums was inapt.
Again joining other Circuits, and consistent with McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001), the Court held that Apprendi does not apply retroactively to a habeas petition under § 2241.
Finally, for the first time on appeal of the denial of his § 2241 petition, Dohrmann claimed ineffective assistance of counsel. The Court held that it does not consider claims raised for the first time on appeal in § 2241 proceedings.
Joining the holdings of all other Circuits to have considered the question, the Court held that Apprendi v. New Jersey does not apply to restitution orders. The Court pointed out that the federal restitution statutes do not contain statutory maximums. Consequently, Apprendi’s holding concerning the constitutional principles applicable to statutory maximums was inapt.
Again joining other Circuits, and consistent with McCoy v. U.S., 266 F.3d 1245 (11th Cir. 2001), the Court held that Apprendi does not apply retroactively to a habeas petition under § 2241.
Finally, for the first time on appeal of the denial of his § 2241 petition, Dohrmann claimed ineffective assistance of counsel. The Court held that it does not consider claims raised for the first time on appeal in § 2241 proceedings.
Paley: Post-offense appreciation in value of laundered funds does not increase sentence
In U.S. v. Paley, No. 05-13422 (March 15, 2006), the Court reversed a sentence for a defendant convicted of money laundering, where the district court had calculated the amount of laundered funds based on the appreciated value of the company in which they were invested, not the amount of the original investment.
The Court noted that the Guidelines defined the amount at issue as the amount of "laundered funds" (not as, in the earlier Guideline language, simply the "funds"). This language referenced funds that were "actually laundered." The Court noted that allowing subsequent market changes to affect the amount at issue could result in a decrease in the amount, if the laundered funds were invested in an asset that decreased in value.
The Court rejected the government’s argument that any error was harmless, because the district court would have imposed the same sentence, even once it correctly understood the Guideline. The Court pointed out that the district court stated that Paley’s sentencing was "difficult," which suggested a different sentence was possible on remand. The Court therefore vacated the sentence and remanded for resentencing.
The Court noted that the Guidelines defined the amount at issue as the amount of "laundered funds" (not as, in the earlier Guideline language, simply the "funds"). This language referenced funds that were "actually laundered." The Court noted that allowing subsequent market changes to affect the amount at issue could result in a decrease in the amount, if the laundered funds were invested in an asset that decreased in value.
The Court rejected the government’s argument that any error was harmless, because the district court would have imposed the same sentence, even once it correctly understood the Guideline. The Court pointed out that the district court stated that Paley’s sentencing was "difficult," which suggested a different sentence was possible on remand. The Court therefore vacated the sentence and remanded for resentencing.
Brown: Shoeless suspect not in custody
In U.S. v. Brown, No. 04-10325 (March 13, 2006), the Court affirmed the conviction and death sentence for a defendant convicted of a 2002 murder of a postmistress in Fleming, Georgia.
The Court rejected Brown’s argument that his first confession was given to police in violation of his Miranda rights. The Court found that during interrogation Brown was repeatedly told he was free to leave at any time, and that the police officers who asked him questions were not armed. Consequently, Brown was not "in custody" for Miranda purposes, and his rights therefore were not violated. The Court recognized that the police confiscated Brown’s only pair of sneakers (a footprint was found at the crime scene), but noted he could still have gone outside barefoot, and, more importantly, could simply have not talked to the police.
The Court also rejected the argument that the district court erred in not holding an evidentiary hearing on whether the police were "unduly suggestive" in obtaining eye-witness testimony concerning photo lineups. The Court found any error harmless in light of the other "overwhelming" evidence against Brown.
The Court also found no error in the district court’s ruling that at the sentencing phase Brown could not introduce the testimony of the victim’s relative that opposed the imposition of the death penalty. Such testimony would invade the province of the jury in deciding Brown’s fate.
The Court also rejected Brown’s challenge to a Magistrate Judge’s ruling which quashed one of his subpoenas. The Court noted that by failing to appeal this ruling to the district judge, Brown waived the argument.
The Court also rejected the argument that the empaneling of a death-qualified jury deprived Brown of a fair jury in the guilt-innocence phase, noting that this argument was rejected by the Supreme Court in Lockhart v. McCree.
The Court also rejected Brown’s challenge to the district court’s statements during voir dire (not objected to contemporaneously) regarding the burden of proof at sentencing. Though recognizing that some statements were "inartfully worded," the error did not prejudice Brown, because the judge gave correct instructions at the conclusion of the sentencing phase.
The Court found no error in the district court’s dismissal of one juror "for cause" in light of the juror’s "equivocating" answers during voir dire regarding her willingness to impose the death penalty.
No reversible error was found in the district court’s "slip of the tongue" in telling one juror that Brown had pled guilty, in view of the correct jury instructions at the conclusion of the trial.
No hearsay or Crawford error was found in the admission, at the sentencing phase, of testimony about the family’s grieving after the victim’s death. The Court pointed out that the statements were not "testimonial," and therefore not subject to exclusion under Crawford, and that it was even unclear whether the statements were "hearsay."
The Court also rejected Brown’s argument that the photos of the victim taken after the murder were unfairly prejudicial because they showed blood which would have become evident only after he left the scene of the crime and the body was moved by attempted rescuers. The Court noted that the blood resulted from Brown’s decision to stab the victim "repeatedly."
The Court found no error in the district court’s refusal to authorize funds to pay for a social worker witness regarding Brown’s social history. Noting Brown’s "coherent" presentation on this topic at trial with the witnesses for which funding was provided.
The Court further rejected the argument that a "pecuniary gain" aggravating factor can only arise in a murder for hire case, not as here, when robbery was the motive.
Finally, the Court rejected the argument that the district court should have held an evidentiary hearing regarding the reconstruction of transcripts of alleged ex parte proceedings involving the district court and relating to his requests for funds to aid in his defense. The Court noted that Brown did not follow the procedure of making a proffer of the unrecorded content of the communications.
The Court rejected Brown’s argument that his first confession was given to police in violation of his Miranda rights. The Court found that during interrogation Brown was repeatedly told he was free to leave at any time, and that the police officers who asked him questions were not armed. Consequently, Brown was not "in custody" for Miranda purposes, and his rights therefore were not violated. The Court recognized that the police confiscated Brown’s only pair of sneakers (a footprint was found at the crime scene), but noted he could still have gone outside barefoot, and, more importantly, could simply have not talked to the police.
The Court also rejected the argument that the district court erred in not holding an evidentiary hearing on whether the police were "unduly suggestive" in obtaining eye-witness testimony concerning photo lineups. The Court found any error harmless in light of the other "overwhelming" evidence against Brown.
The Court also found no error in the district court’s ruling that at the sentencing phase Brown could not introduce the testimony of the victim’s relative that opposed the imposition of the death penalty. Such testimony would invade the province of the jury in deciding Brown’s fate.
The Court also rejected Brown’s challenge to a Magistrate Judge’s ruling which quashed one of his subpoenas. The Court noted that by failing to appeal this ruling to the district judge, Brown waived the argument.
The Court also rejected the argument that the empaneling of a death-qualified jury deprived Brown of a fair jury in the guilt-innocence phase, noting that this argument was rejected by the Supreme Court in Lockhart v. McCree.
The Court also rejected Brown’s challenge to the district court’s statements during voir dire (not objected to contemporaneously) regarding the burden of proof at sentencing. Though recognizing that some statements were "inartfully worded," the error did not prejudice Brown, because the judge gave correct instructions at the conclusion of the sentencing phase.
The Court found no error in the district court’s dismissal of one juror "for cause" in light of the juror’s "equivocating" answers during voir dire regarding her willingness to impose the death penalty.
No reversible error was found in the district court’s "slip of the tongue" in telling one juror that Brown had pled guilty, in view of the correct jury instructions at the conclusion of the trial.
No hearsay or Crawford error was found in the admission, at the sentencing phase, of testimony about the family’s grieving after the victim’s death. The Court pointed out that the statements were not "testimonial," and therefore not subject to exclusion under Crawford, and that it was even unclear whether the statements were "hearsay."
The Court also rejected Brown’s argument that the photos of the victim taken after the murder were unfairly prejudicial because they showed blood which would have become evident only after he left the scene of the crime and the body was moved by attempted rescuers. The Court noted that the blood resulted from Brown’s decision to stab the victim "repeatedly."
The Court found no error in the district court’s refusal to authorize funds to pay for a social worker witness regarding Brown’s social history. Noting Brown’s "coherent" presentation on this topic at trial with the witnesses for which funding was provided.
The Court further rejected the argument that a "pecuniary gain" aggravating factor can only arise in a murder for hire case, not as here, when robbery was the motive.
Finally, the Court rejected the argument that the district court should have held an evidentiary hearing regarding the reconstruction of transcripts of alleged ex parte proceedings involving the district court and relating to his requests for funds to aid in his defense. The Court noted that Brown did not follow the procedure of making a proffer of the unrecorded content of the communications.
Tuesday, March 14, 2006
Barner: No Presumption of Prosecutorial Vindictiveness
In U.S. v. Barner, No. 04-13384 (March 10, 2006), the Court, on a government appeal, held that the district court erred in concluding that the facts warranted a presumption that the Fifth Superseding Indictment resulted from prosecutorial vindictiveness, but remanded the case for a case-specific determination whether, in fact, prosecutorial vindictiveness occurred.
The Court noted that, while a prosecutor’s decision to seek heightened charges after a successful post-trial appeal is enogh to invoke a presumption of vindictiveness, proof of a prosecutorial decision to increase charges after a defendant has exercised a legal right does not alone give rise to a presumption in the pretrial context.
Without reaching the question whether vindictiveness could ever be presumed in a pretrial context, the Court found that the facts of Barner’s case did not support such a presumption.
The Court noted that in Barner’s case, additional counts were added to a superseding indictment, after, as a result of a mistake by the government, counts of the preceding indictment had been dismissed. The Court noted that Barner’s change of plea, from guilty to not guilty, occurred more than year before the indictment was superseded, which did not give rise to a inference of vindictiveness – even assuming a mere change of plea could not be the basis for superseding an indictment. See Bordenkircher v. Hayes. Garner claimed that the indictment was superseded in response to his numerous pre-trial motions, but the Court found insufficient record evidence to support a presumption of vindictiveness.
The district court presumed vindictiveness based on the much greater potential punishment Garner faced under the new charges added in the superseding indictment. The Court pointed out that the punishment faced by a defendant who goes to trial is often greater than when he pleads guilty. This difference alone does not support a claim of vindictiveness. The district court also relied on the fact that the government used extra time granted as a result of a motion for a continuance to supersede the indictment. But the Court found no basis for presuming vindictiveness from this (though it could be the basis for other "remedial measures").
The Court, however, noted that on remand the district could make findings of fact regarding actual vindictiveness, that is, to show that the superseding indictment was meant to punish Barner for the exercise of his rights to challenge the indictment.
The Court noted that, while a prosecutor’s decision to seek heightened charges after a successful post-trial appeal is enogh to invoke a presumption of vindictiveness, proof of a prosecutorial decision to increase charges after a defendant has exercised a legal right does not alone give rise to a presumption in the pretrial context.
Without reaching the question whether vindictiveness could ever be presumed in a pretrial context, the Court found that the facts of Barner’s case did not support such a presumption.
The Court noted that in Barner’s case, additional counts were added to a superseding indictment, after, as a result of a mistake by the government, counts of the preceding indictment had been dismissed. The Court noted that Barner’s change of plea, from guilty to not guilty, occurred more than year before the indictment was superseded, which did not give rise to a inference of vindictiveness – even assuming a mere change of plea could not be the basis for superseding an indictment. See Bordenkircher v. Hayes. Garner claimed that the indictment was superseded in response to his numerous pre-trial motions, but the Court found insufficient record evidence to support a presumption of vindictiveness.
The district court presumed vindictiveness based on the much greater potential punishment Garner faced under the new charges added in the superseding indictment. The Court pointed out that the punishment faced by a defendant who goes to trial is often greater than when he pleads guilty. This difference alone does not support a claim of vindictiveness. The district court also relied on the fact that the government used extra time granted as a result of a motion for a continuance to supersede the indictment. But the Court found no basis for presuming vindictiveness from this (though it could be the basis for other "remedial measures").
The Court, however, noted that on remand the district could make findings of fact regarding actual vindictiveness, that is, to show that the superseding indictment was meant to punish Barner for the exercise of his rights to challenge the indictment.
Scott: Sentence Vacated even though district court said it wanted to impose max
In U.S. v. Scott, No. 05-12511 (March 10, 2006), the Court affirmed in part and reversed in part a sentence imposed on a defendant convicted of threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B).
The Court rejected Scott’s argument that his sentence should not have enhanced pursuant to USSG § 2A6.1(b)(2), for making more than one threat, because he sent out only two threatening mailings. The Court pointed out that the second mailing contained at least two distinct threats in two letters in two envelopes. Since the Guideline counts multiple threats, not just multiple mailings, Scott qualified for the § 2A6.1(b)(2) enhancement.
The Court, however, agreed with Scott that post-arrest statements he made to the FBI could not support a § 2A6.1(b)(1) six-level enhancement for having an intent to carry out the threat. The statements were not made, as the Guideline provides, "before or during" the criminal offense, but were merely ambiguous responses to questions while in custody.
The Court noted that, post-Booker, it need not reverse a sentence, even one involving a Guideline miscalculation, if the district court would have imposed the same sentence anyway. Here, even though the district court stated that it believed that Scott deserved the maximum sentence, the Court could not say that Scott would have received the same "severe sentence." The Court therefore vacated the sentence and remanded for resentencing.
The Court rejected Scott’s argument that his sentence should not have enhanced pursuant to USSG § 2A6.1(b)(2), for making more than one threat, because he sent out only two threatening mailings. The Court pointed out that the second mailing contained at least two distinct threats in two letters in two envelopes. Since the Guideline counts multiple threats, not just multiple mailings, Scott qualified for the § 2A6.1(b)(2) enhancement.
The Court, however, agreed with Scott that post-arrest statements he made to the FBI could not support a § 2A6.1(b)(1) six-level enhancement for having an intent to carry out the threat. The statements were not made, as the Guideline provides, "before or during" the criminal offense, but were merely ambiguous responses to questions while in custody.
The Court noted that, post-Booker, it need not reverse a sentence, even one involving a Guideline miscalculation, if the district court would have imposed the same sentence anyway. Here, even though the district court stated that it believed that Scott deserved the maximum sentence, the Court could not say that Scott would have received the same "severe sentence." The Court therefore vacated the sentence and remanded for resentencing.
Friday, March 10, 2006
Dulcio: "Lay Expert Testimony" is Error, but Harmless
In U.S. v. Dulcio, No. 04-13838 (March 8, 2006), the Court affirmed convictions and sentneces for drug-trafficking.
The defendants argued that the district court erred in admitting expert testimony from a government agent that people who go to pick up a shipment generally know whether or not the shipment contains illegal drugs. The Court recognized a Circuit split on whether the admission of this expert testimony is error, and declined to reach the issue, finding that any error would have been harmless in light of the strength of the government’s evidence.
The Court did find error in the admission of "lay opinion testimony" of one agent concerning the modus operandi of people in the drug trade. The Court noted that Fed. R. Evid 701 provides that lay witnesses may not opine based on specialized knowledge. However, any error was harmless, in light of the strength, again, of the government’s evidence.
The Court held that the defendants waived their "prosecutorial bad faith" attack on the indictment by failing to file a motion before trial.
The Court also rejected a challenge to the conspiracy jury instruction, which, the defendants claimed, should have instructed on multiple conspiracies. The Court found that the instruction given did not impair their ability to present a defense.
The Court rejected defendants’ argument that the district court should not have precluded defense counsel from asking the jury to draw two inferences during closing argument. The Court noted that the inferences were not supported by record evidence.
The Court also rejected a claimed Bruton error, in failing to sever trials. The Court noted that any Bruton error arising from the admission of a co-defendant’s statement was harmless, because other evidence indicated the defendant’s full participation in the conspiracy.
Finally, the Court found no Booker error at sentencing, because the district court stated that it would impose the same sentence regardless of the sentencing regime.
The defendants argued that the district court erred in admitting expert testimony from a government agent that people who go to pick up a shipment generally know whether or not the shipment contains illegal drugs. The Court recognized a Circuit split on whether the admission of this expert testimony is error, and declined to reach the issue, finding that any error would have been harmless in light of the strength of the government’s evidence.
The Court did find error in the admission of "lay opinion testimony" of one agent concerning the modus operandi of people in the drug trade. The Court noted that Fed. R. Evid 701 provides that lay witnesses may not opine based on specialized knowledge. However, any error was harmless, in light of the strength, again, of the government’s evidence.
The Court held that the defendants waived their "prosecutorial bad faith" attack on the indictment by failing to file a motion before trial.
The Court also rejected a challenge to the conspiracy jury instruction, which, the defendants claimed, should have instructed on multiple conspiracies. The Court found that the instruction given did not impair their ability to present a defense.
The Court rejected defendants’ argument that the district court should not have precluded defense counsel from asking the jury to draw two inferences during closing argument. The Court noted that the inferences were not supported by record evidence.
The Court also rejected a claimed Bruton error, in failing to sever trials. The Court noted that any Bruton error arising from the admission of a co-defendant’s statement was harmless, because other evidence indicated the defendant’s full participation in the conspiracy.
Finally, the Court found no Booker error at sentencing, because the district court stated that it would impose the same sentence regardless of the sentencing regime.
Wednesday, March 08, 2006
LeCroy: FDPA is Constitutional
In U.S. v. LeCroy, No. 04-15597 (March 2, 2006), the Court (Tjoflat, Anderson, Marcus) affirmed the conviction and death sentence of a federal inmate for a 2001 carjacking murder (and rape) in Georgia.
The Court rejected the challenge to the constitutionality of the Federal Death Penalty Act. The defendant claimed that it was unconstitutional because it does not require prosecutors to charge aggravating facts warranting the death penalty in the indictment. The Court noted, however, that in LeCroy’s case the prosecutors had charged one aggravating fact in the indictment. The Court found no constitutional flaw in the indictment since it did not prevent (as happened here) the grand jury from charging an aggravating fact in the indictment. The Court also rejected the argument that all aggravating factors must be charged in the indictment. The Court noted that non-statutory factors need only be considered by a jury after the defendant has been found death eligible. Therefore, failure to include them in the indictment did not violate the Constitution.
The Court also rejected the argument that the jury should have been instructed to consider the option of convicting LeCroy on the lesser included offense of carjacking without death of another person. The Court noted that the carjacking statute contemplates taking a motor vehicle "by force." In this case, the "force" could only be the murder charged. Therefore, there was no lesser offense instruction to be given.
The Court also rejected the sufficiency of the evidence argument, which claimed no carjacking could be proved because of the passage of time between the murder and the carjacking. Citing U.S. v, Kimble, 178 F.3d 1163 (11th Cir. 1999), the Court noted that even though the use of force can be "in the past" in relation to the carjacking, this does not preclude the commission of carjacking. The Court pointed out that the main, if only, purpose of the murder was to take the victim’s car.
The Court also rejected a Rule 404(b) challenge to the admission of a prior conviction that was 10 years old, pointing out that it has upheld admission of 15-year old convictions, and that LeCroy’s incarceration in the intervening period increased the probative value of the prior conviction.
The Court rejected a challenge to the "expert" testimony of a policeman that it looked like a bloody knife had been wiped on the shirt of the victim. This was not expert testimony, but eyewitness testimony.
The Court also rejected the argument that the defendant was prejudiced because he did not call his expert witnesses for fear of rebuttal evidence the government would put on. The Court noted that the in limine ruling permitting the rebuttal evidence was not reviewable on appeal. The defendant did not put on his evidence, and was now precluded from having the Court speculate as to what he would have said, and what the rebuttal evidence would have said.
The Court also rejected the argument that the government should have provided advance notice of the evidence it intended to introduce concerning aggravating factors. No such obligation exists at law, the Court held.
Finally, the Court rejected, applying plain error review, the argument that "future dangerousness" was not a proper aggravating factor. The Court found no law to support this argument.
The Court rejected the challenge to the constitutionality of the Federal Death Penalty Act. The defendant claimed that it was unconstitutional because it does not require prosecutors to charge aggravating facts warranting the death penalty in the indictment. The Court noted, however, that in LeCroy’s case the prosecutors had charged one aggravating fact in the indictment. The Court found no constitutional flaw in the indictment since it did not prevent (as happened here) the grand jury from charging an aggravating fact in the indictment. The Court also rejected the argument that all aggravating factors must be charged in the indictment. The Court noted that non-statutory factors need only be considered by a jury after the defendant has been found death eligible. Therefore, failure to include them in the indictment did not violate the Constitution.
The Court also rejected the argument that the jury should have been instructed to consider the option of convicting LeCroy on the lesser included offense of carjacking without death of another person. The Court noted that the carjacking statute contemplates taking a motor vehicle "by force." In this case, the "force" could only be the murder charged. Therefore, there was no lesser offense instruction to be given.
The Court also rejected the sufficiency of the evidence argument, which claimed no carjacking could be proved because of the passage of time between the murder and the carjacking. Citing U.S. v, Kimble, 178 F.3d 1163 (11th Cir. 1999), the Court noted that even though the use of force can be "in the past" in relation to the carjacking, this does not preclude the commission of carjacking. The Court pointed out that the main, if only, purpose of the murder was to take the victim’s car.
The Court also rejected a Rule 404(b) challenge to the admission of a prior conviction that was 10 years old, pointing out that it has upheld admission of 15-year old convictions, and that LeCroy’s incarceration in the intervening period increased the probative value of the prior conviction.
The Court rejected a challenge to the "expert" testimony of a policeman that it looked like a bloody knife had been wiped on the shirt of the victim. This was not expert testimony, but eyewitness testimony.
The Court also rejected the argument that the defendant was prejudiced because he did not call his expert witnesses for fear of rebuttal evidence the government would put on. The Court noted that the in limine ruling permitting the rebuttal evidence was not reviewable on appeal. The defendant did not put on his evidence, and was now precluded from having the Court speculate as to what he would have said, and what the rebuttal evidence would have said.
The Court also rejected the argument that the government should have provided advance notice of the evidence it intended to introduce concerning aggravating factors. No such obligation exists at law, the Court held.
Finally, the Court rejected, applying plain error review, the argument that "future dangerousness" was not a proper aggravating factor. The Court found no law to support this argument.
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