Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, May 24, 2006

Arias-Izquierdo: Cuban Aircraft Hijacking Convictions Affirmed

In U.S. v. Arias-Izquierdo, No. 04-12034 (May 22, 2006), the Court affirmed aircraft piracy convictions for six Cuban defendants who diverted an aircraft bound for Havana to Key West, Florida, rejecting each of the defendants’ separate challenge.
As to one defendant, the Court rejected the argument that there was insufficient evidence to support his conviction for aiding and abetting the hijacking, pointing to the testimony that this defendant walked through the aircraft holding a knife or an axe, and exclaimed to passengers during the flight that they should remain seated and quiet.
As to a second defendant, the Court rejected the argument that the district court abused its discretion in refusing to allow cross-examination of government witnesses about their membership in the Communist Party in Cuba. The district court disallowed these questions because it concluded that their purpose was to prejudice anti-Communist members of the jury. The Court noted that the defendant was allowed to question witnesses, inter alia, about whether they received benefits from the Cuban government for their testimony. The Court also noted that questions about Communist Party affiliation would not have been probative of their truthfulness. The Court found no abuse of discretion.
As to a third defendant, the Court rejected the argument that he was not guilty of aircraft piracy because he only acted to secure the aircraft steward, not the pilot. The government proved that he used intimidation and threats of violence to maintain control over the passenger cabin of the aircraft, in a manner meant to influence the flight plan and the pilot. This sufficed to sustain the conviction.
The Court agreed with the defendant that a summary of flight information, prepared by an employee of Cubana Airlines for the prosecution, was not admissible as a "business record" under FRE 803(6). The document was not prepared at or near the time of the event it recorded. The Court also noted that the government did not satisfy FRE 1006, because the underlying records supporting the summary were not provided to the defense. Thus, the district court erred in allowing the document to be admitted. However, in light of the strength of the government’s other evidence, the error was harmless.
The Court rejected the argument that the district court should have instructed the jury that two of the counts charged in the indictment were "lesser included offenses." The Court instruced the jury to consider each count separately. The jury’s verdict showed that it followed this instruction, as it did not convict all defendants on all counts. Thus, the requested instruction was properly denied.
The Court rejected the argument that 20-year sentence was "cruel and unusual punishment." "The hijacking of an aircraft is an extraordinarily dangerous undertaking," the Court noted. Further, the fact that the defendant was fleeing a repressive Cuban government was not a consideration.
As to a fifth defendant, the Court rejected the argument that the jury should have been instructed that "knowingly" meant "not because of . . . [an] innocent reason." The Court found that this language would have misled the jury into thinking that a desire to leave Cuba is an innocent reason for hijacking an aircraft.
The Court found no error in denying post-trial discovery of a Cuban government witness who defected to the United States shortly after the trial. The Court noted that the defense did not show that the witness would have changed his story.
Finally, the Court found Booker error in the district court’s imposition of a two-level obstruction of justice enhancement under a mandatory Guidelines regime. The Court pointed out that the district court at sentencing said it was "reluctant" to impose the enhancement. This indicated a probability of a different result on resentencing, and justified a remand.

Thursday, May 18, 2006

Love: Invited Supervised Release Error

In U.S. v. Love, No. 05-11141 (May 18, 2006), the Court held that at sentencing the defendant "invited" any error in his sentence, and was therefore barred from challenging on appeal the legality of a five-year term imposed for his conviction of contempt, in violation of 18 U.S.C. § 401(3).
The defendant was held in contempt for violating a temporary restraining order. At sentencing, the defendant did not object to the PSI determination that the court could impose a term of supervised release of up to five years. Defense counsel repeatedly requested that the court impose a sentence of time served, followed by a term of supervised release. The Court sentenced Love to 45 days’ incarceration followed by five years of supervised release.
On appeal, the defendant argued that because his contempt conviction did not qualify as a "felony or misdemeanor" under the supervised release statute, 18 U.S.C. § 3583(a), or, alternatively, because his contempt conviction counted as a misdemeanor, and therefore was punishable by only up to one year of supervised release, the five year term of supervised release was invalid.
The Court declined to reach the merits of Love’s arguments, finding that any error was "invited" at sentencing, when defense counsel repeatedly agreed to a term of supervised release.

Tuesday, May 16, 2006

Shannon: Imprisonment during 15-year window

In U.S. v. Shannon, No. 05-13491 (May 16, 2006), the Court rejected the defendant’s argument that his two prior convictions should not count as prior felony convictions for purposes of the career offender classification of USSG § 4B1.1. Although Shannon committed the prior offenses outside the 15-year window preceding the offense of conviction,m the convictions counted because the sentences imposed for those convictions resulted in Shannon being incarcerated during some part of the 15-year period.
The Court noted that the Guidelines provide that a prior conviction is counted when a prior sentence resulted in the defendant being incarcerated during any part of the 15-year period. Shannon had been convicted twice prior to the 15-year period, but, after revocation of probation on these convictions was resentenced and as a result served a term of incarceration for the two prior convictions during the 15-year window. The Court rejected Shannon’s challenge to the "technical" application of the Guidelines.

Monday, May 15, 2006

Segura-Baltazar: No Privacy in Garbage

In U.S. v. Segura-Baltazar, No. 05-12705 (May 12, 2006), the Court upheld the legality of the search of the defendant’s trash outside his home, upheld the legality of a "no-knock" search, and affirmed the imposition of a mandatory sentence based in part on the weight of the carrier in which methaphantamine
The police, with the aid of the local trash collector over a period of several months, obtained the garbage bags which were left for collection outside the home of a suspected drug trafficker. Some of the bags were left on the curb, some were left closer to the house, at a place where they were habitually picked up for disposal by the trash collector. In the garbage, the police found two different magazines for semiautomatic handguns, an empty box of 12-gauge shotgun shells, one live round of .45 caliber ammunition, and empty boxes that likely once contained surveillance cameras and monitors that have the ability to see in low-light conditions.
Citing California v. Greenwood, 486 U.S. 35 (1989), the Court held that the defendant had no reasonable expectation of privacy in trash bags left outside his home. While the bags left by the house, no on the curb, presented a "closer" question, the Court noted that bags left in this spot were habitually picked up by the trash collector, diminishing the privacy expectation.
The Court also found no Fourth Amendment in the "no knock" entry into the home. Though noting the law in another circuit that the presence of guns in a home does not standing alone justify a "no knock" entry, here the presence of guns and surveillance cameras easily provided the reasonable suspicion necessary to support a "no knock" entry.
Finally, as to sentencing, the Court rejected the argument that the weight of the "cutting agent" for methamphetamine should not have been counted in determining the weight of drugs that was used as the basis for imposing a ten-year mandatory sentence. Citing Chapman v. U.S., 500 U.S. 453, the Court noted that Congress based sentences on the "mixture" of a substance containing a detectable amount of drugs. This indicated that the cutting agent should be included. The Court distinguished U.S. v. Jackson, 115 F.3d 843 (11th Cir. 1997), because the sugar that was not counted as cocaine in that case was more like a container than a carrier.

Thursday, May 11, 2006

Cenna: Supervised release doesn't exceed statutory maximum

In U.S. v. Cenna, No. 05-14011 (May 11, 2006), the Court rejected the argument that the imposition of a one-year term of supervised release in addition to the maximum termof one-year’s incarceration under 21 U.S.C. § 844(a), for misdemeanor possession of marihuana and heroin, was illegal, because it violated the statutory maximum.
The Court noted that its caselaw, prior to Johnson v. U.S., 529 U.S. 694 (2000), held that courts can order supervised release in addition to the maximum term of imprisonment available by statute. The Court rejected Cenna’s argument that Johnson changed this result, joining other circuits to have so held.

Izquierdo: Incompetency to Withdraw Guilty Plea

In U.S. v. Izquierdo, No. 04-14641 (May 10, 2006), the Court affirmed the denial of a motion to withdraw a guilty plea based on incompetency.
After pleading guilty to cocaine-trafficking charges, the defendant filed a motion for a psychological evaluation, and attached an expert report which diagnosed him as mentally incompetent. A competency test was ordered, and it also concluded that Izquierdo was incompetent. However, after this report was filed an inmate at Izquierdo’s prison reported that Izquierdo told him that he planned to act crazy in order to be found incompetent. A second competency report was ordered, and it concluded that Izquierdo was competent, and that he had misled the psychologist earlier.
The Court noted that, although the government ordinarily bears the burden of proving a person’s competency to stand trial on criminal charges, here Izquierdo was moving to withdraw his guilty plea. In this circumstance, Izquierdo bore the burden of showing incompetency. The Court found that the district court did not abuse its discretion in giving greater weight to the second competency report, and in therefore denying Izquierdo’s motion to withdraw his guilty plea based on his incompetence.

Tuesday, May 09, 2006

Scott: Not yet "found" in the U.S.

In U.S. v. Scott, No. 05-13276 (May 8, 2006), the Court (Anderson, Fay & Siler b.d.) held that the sentencing court erroneously added one criminal history point under USSG § 4A1.1(e) to Scott’s criminal history. This Guideline provides for a one-point offense level enhancement if the defendant committed the offense (in this case, illegal reentry) less than than two years after release from a sentence. The district court found that Scott illegally rentered the U.S. while he was serving a 180-day State sentence for probation violation.
Reversing, the Court found that Scott was "found" in the U.S., i.e., violated the illegal reentry statute, at the time he was initially interviewed by federal authorities. This interview occurred before his incarceration on State charges. At that timehe was not yet under a sentence of imprisonment. Therefore, the § 4A1.1(e) enhancement was inapplicable.

Friday, May 05, 2006

Alvarez-Coria: Knowledge of Drug Type is "immaterial"

In U.S. v. Alvarez-Corria, No. 05-15683 (May 4, 2006), the Court affirmed an 86-month sentence imposed on a cocaine and methamphetamine-trafficking defendant.
The Court rejected the argument that the defendant was entitled to a minor role sentence reduction. The Court pointed out that the defendant was only held accountable for the drugs that he admitted conspiring to transport. His actual and relevant conduct were therefore the same and he did not play a minor role in that conduct.
Further, the defendant was as culpable as some of his accomplices. He gave his truck as security for the transaction. The higher-ups in the conspiracy used him to coordinate the movements of others. And he was, most importantly, entrusted to drive away with the drugs at the end of the transaction.
The Court rejected the argument that the defendant thought cocaine, not methamphetamine, was being transported, and therefore should only be punished for cocaine. The Court noted that the defendant’s knowledge of the type of drug involved was "immaterial."

Owens: Prior Firearm Possession Qualifies as Crime of Violence

In U.S. v. Owens, No. 05-10753 (May 4, 2006), the Court affirmed the imposition of a sentence enhancement based on a finding that a prior conviction for possession of an unregistered firearm constituted a "crime of violence."
The defendant was convicted in 1995 of possession of an unregistered rifle with a seven-inch barrel, in violation of the National Firearms Act, 26 U.S.C. § 5681(d). In 2004, the defendant was convicted of being a felon in possession of a firearm. This offense calls for a Guideline enhancement if the prior felony was a "crime of violence."
Rejecting the argument that the prior felony was not a crime of violence, the Court aligned itself with other circuits which have held that a § 5681 conviction qualifies as a crime of violence. The possession of firearms is outlawed by § 5681 because of the "virtual inevitability that such possession will result in violence." The Court also rejected the defendant’s reliance on U.S. v. Spell, 44 F.3d 936 (11th Cir. 1995), which held that a court could look at the circumstances of the predicate offense to determine if it qualifies as a crime of violence. Spell only applies if there is an "ambiguity" about the nature of the prior conviction. No ambiguity arose here.

Garcia: DEA expert testimony admissible

In U.S. v. Garcia, No. 04-14763 (May 3, 2006), the Court affirmed drug trafficking convictions and rejected the defendant’s challenges to the admission of expert testimony evidence concerning the secret codes of drug traffickers.
The recorded conversations introduced in evidence at trial included references, inter alia, to "shirts." The government introduced expert testimony of a DEA agent, who had spoken to a testifying government informant, and who testified that the defendants were speaking, as Mexican drug dealers do, in code, and that the word "shirts" referred to shipments of "cocaine."
The Court held that it was not an abuse of discretion to admit the expert testimony concernng the practices of drug organizations. The DEA agent in question had been involved in at least 50 prior drug investigations. Further, the testimony was highly probative as it explained how the evidence showed that the defendants were advancing the goals of the drug trafficking organization.
The Court also held that no Confrontation Clause violation occurred when the DEA agent testified that he relied in part on what he was told by the government informant about the meaning of "shirts." This informant also testified at trial, and therefore the defendants had an opportunity to confront him and cross-examine him.
The Court also found that the expert testified to matters within his expertise, and that his reliance on hearsay evidence was therefore legitimate.
The Court rejected one defendant’s claim that the district court should have disqualified his attorney when a conflict became apparent a trial between this lawyer’s representation of both himself and a co-defendant. The Court pointed out that the Magistrate Judge held a complete hearing on this subject at which the defendant knowingly waived his right to obtain his own attorney.
Finally, the Court rejected all challenges to the sufficiency of the evidence, pointing out, for example, that cell phone calls were placed on a phone to which one of the defendants subscribed, to a co-defendant cousin to whom the defendant referred as "cuz."

McVay: Probation only reversed for HealthSouth Officer

In U.S. v. McVay, No. 04-13455 (May 5. 2006), the Court, on a government appeal, reversed the sentence of probation only imposed on a former financial officer of HealthSouth, who pled guilty to fraud charges that resulted in losses of $400 million.
At sentencing, the government moved for a § 5K1.1 reduction of sentence, based on McVay’s cooperation. The Guideline sentence was 87 months. The district court departed well below the government’s recommended level, imposing a 60-month sentence of probation, and no jail term.
The Court pointed out that the sentencing court’s only explanation for its downward departure was the defendant’s "exemplary record" before he committed the offense, and the circumstances surrounding his daughter. The Court pointed out that none of these factors were relevant to the 5K1.1 factors identified in the Guidelines, such as the usefulness of the defendant’s assistance to the government, and the reliability of his information. The Court therefore remanded for resentencing, pointing out that even under advisory guidelines a sentencing court must correctly calculate the Guideline sentence. The Court further noted that, under advisory Guidelines, the farther the court diverges from the advisory guideline sentence, the more compelling the reasons for its divergence must be. The Court concluded that, in the absence of truly compelling reasons, a probation sentence for a multi-billion dollar securities fraud at the expense of the investing public was "not easily reconcilable" with the purposes of punishment set forth in 18 U.S.C. § 3553(a).