In U.S. v. Taylor, No. 05-10658 (July 28, 2006), the Court, rejecting the defendant’s argument that his property was searched in violation of the Fourth Amendment, affirmed a defendant’s conviction for being a felon in possession of a firearm.
After two 911 calls were placed to police from the same number, with the caller hanging up immediately, police were sent to the place from which the calls originated. The property, which belonged to Taylor, was a five acre lot. On the property were a home, a nearby barn, and a pond 60 yards from the home. When police arrived, they drove by the gate to the home, which was open and saw Taylor walking toward them from the barn. Based on Taylor’s answers, police suspected that a violent domestic argument had just occured, and they asked for Taylor’s consent to search the barn. Finding nothing in the barn, the police followed a trail of fresh footsteps to the pond, where they saw a bag, which contained a gun. The gun was the basis for the felon-in-possession prosecution.
Citing the "knock and talk" exception to the warrant requirement, the Court noted that the police did not violate the Fourth Amendment by entering Taylor’s property and coming up to his house.
The Court further found that, although Taylor only consented to a search of his barn, this did not preclude police from searching the nearb pond. The Court noted that a consent is not necessary if the area searched is not within the curtilage of the home. Here, the pond was sixty yards from the house and thus not within its curtilage. Further, no activity on the pond was part of the intimate activity of the home. No enclosure surrounded both the home and the pond. And no steps were taken to protect the pond from observation by outsiders. The pond was the equivalent of an "open field," which could be searched by police without violating the Fourth Amendment.
Monday, July 31, 2006
Monday, July 24, 2006
Williams: 100:1 Crack/Powder Disparity is Ok
In U.S. v. Williams, No. 05-13205 (July 21, 2006), on a government appeal, the Court reversed a district court’s sentence, finding that it improperly exercised its discretion under 18 U.S.C. § 3553(a) to reduce a defendant’s sentence based on the disproportionate crack vs powder cocaine rules, disagreement with the Guidelines career offender enhancements, and its belief that the government manipulated the sentence by arranging to purchase crack instead of powder cocaine in a sting operation.
The Court noted that the district court explained its lower sentence based the general 100-1 disparity between punishments for defendants convicted of crack cocaine trafficking compared to those convicted on powder cocaine charges. The Court found that in view of Congressional intent to maintain this disparity, and notwithstanding repeated criticisms of it by the sentencing commission, this was an impermissible sentencing consideration. "Federal courts are not at liberty to supplant this policy decision." The Court rejected reliance on § 3553(a)(6), finding that the disparity was not "unwarranted" because it was endorssed by Congress. Finally, the Court rejected the argument that the 100-1 ratio was Sentencing Commission, not Congressional, policy. Congress established the ratio, and rejected repeated Commission proposals to change it.
The Court noted that in cases where "individualized" factors might counsel against a Guideline sentence, the 100-1 ratio might not apply, but here the district court categorically rejected the 100-1 choice.
The Court also reversed the district court’s rejection of the "arbitrary compounding" effect of the career offender enhancement. The Court found that these Guidelines tracked Congress’ instruction to sentence repeat offenders "at or near" the statutory maximum.
Finally, the Court found no merit in the "sentencing manipulation" ground for a lesser sentence, finding it inapt in a case where the conviction was the result of a valid sting operation.
The Court found that none of the above errors were harmless, because the record demonstrated that the court relied on them when imposing sentence.
The Court noted that the district court explained its lower sentence based the general 100-1 disparity between punishments for defendants convicted of crack cocaine trafficking compared to those convicted on powder cocaine charges. The Court found that in view of Congressional intent to maintain this disparity, and notwithstanding repeated criticisms of it by the sentencing commission, this was an impermissible sentencing consideration. "Federal courts are not at liberty to supplant this policy decision." The Court rejected reliance on § 3553(a)(6), finding that the disparity was not "unwarranted" because it was endorssed by Congress. Finally, the Court rejected the argument that the 100-1 ratio was Sentencing Commission, not Congressional, policy. Congress established the ratio, and rejected repeated Commission proposals to change it.
The Court noted that in cases where "individualized" factors might counsel against a Guideline sentence, the 100-1 ratio might not apply, but here the district court categorically rejected the 100-1 choice.
The Court also reversed the district court’s rejection of the "arbitrary compounding" effect of the career offender enhancement. The Court found that these Guidelines tracked Congress’ instruction to sentence repeat offenders "at or near" the statutory maximum.
Finally, the Court found no merit in the "sentencing manipulation" ground for a lesser sentence, finding it inapt in a case where the conviction was the result of a valid sting operation.
The Court found that none of the above errors were harmless, because the record demonstrated that the court relied on them when imposing sentence.
Faust: Acquitted Conduct Can be Punished by Judge
In U.S. v. Faust, No. 05-11329 (July 21, 2006), the Court reaffirmed that, post-Booker, it does not violate the Sixth Amendment for a sentencing judge to enhance a defendant’s sentence based on conduct for which he was acquitted by a jury.
Faust was convicted of a single count of possessing cocaine with intent to distribute, but acquitted of all three remaining counts of possession of ecstasy with intent to distribute, possession of a firearm as a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. At sentencing, however, the judge enhanced Faust’s sentence based on ecstasy quantities, and based on possession of a dangerous weapon.
The Court first rejected Faust’s challenge to the sufficiency of the evidence, finding sufficient connection between Faust and the apartment at which cocaine was found to support his conviction.
The Court also rejected Faust’s challenge to the acquitted conduct-based sentence enhancements, standing by its prior resolution of this issue in U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005). [Barkett, J., concurred in this result, stating that she was bound by Circuit precedent, but noted that the precedent was incorrect, because factual findings by a judge ought to assess "contextual matters" such as the status of the victim, or the defendant’s role in the offense, not facts which constitute entirely free-standing offenses.]
Faust was convicted of a single count of possessing cocaine with intent to distribute, but acquitted of all three remaining counts of possession of ecstasy with intent to distribute, possession of a firearm as a convicted felon, and possession of a firearm in furtherance of a drug trafficking crime. At sentencing, however, the judge enhanced Faust’s sentence based on ecstasy quantities, and based on possession of a dangerous weapon.
The Court first rejected Faust’s challenge to the sufficiency of the evidence, finding sufficient connection between Faust and the apartment at which cocaine was found to support his conviction.
The Court also rejected Faust’s challenge to the acquitted conduct-based sentence enhancements, standing by its prior resolution of this issue in U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005). [Barkett, J., concurred in this result, stating that she was bound by Circuit precedent, but noted that the precedent was incorrect, because factual findings by a judge ought to assess "contextual matters" such as the status of the victim, or the defendant’s role in the offense, not facts which constitute entirely free-standing offenses.]
Thursday, July 20, 2006
Houston: Batson involves motives, not disparate impact
In U.S. v. Houston, No. 04-16524 (July 19, 2006), the Court rejected a Batson challenge to a conviction, but reversed the sentence on the basis of Booker error.
Pointing out that five out of the prosecution’s six peremptory strikes struck blacks from the venire, Houston claimed that improper race discrimination affected jury selection. The Court found no improper motive in the striking of one of the venirepersons for being asleep during voir dire. As to the four others, the Court accepted the prosecution’s explanation that all had a family member who had been convicted of a crime. The Court rejected Houston’s claim that blacks tend to have more family members convicted of crimes, holding that this "disparate impact" argument was not persuasive in the Batson context, which looks at motives. Further, other evidence – the race of the prosecutor (black), his being forthcoming and non-evasive supported a finding that his reasons were neutral, and not an invalid "sorting device" to hide discrimination.
The Court pointed out that the defense did not question the prosecutor’s reasons for keeping white jurors who also had family members with convictions. Hence, since the defendant bore the burden of proof, the Court had no basis for questioning the prosecutor’s credibility on this basis.
Turning to the sentence, the Court noted that the district court followed the Guideline instruction to impose the statutory maximum (in Houston’s case, 360 months) when the Guideline sentence exceeded the statutory maximum. The Court rejected the Government’s argument that the error was harmless, finding that the district court "very clearly" imposed a Guideline sentence. The Court reached the same conclusion regarding the sentence on a second count of conviction, for which the district court, again adhering to the Guidelines instruction, imposed a consecutive sentence at the mandatory minimum. The Court vacated the sentence and remanded for resentencing.
Pointing out that five out of the prosecution’s six peremptory strikes struck blacks from the venire, Houston claimed that improper race discrimination affected jury selection. The Court found no improper motive in the striking of one of the venirepersons for being asleep during voir dire. As to the four others, the Court accepted the prosecution’s explanation that all had a family member who had been convicted of a crime. The Court rejected Houston’s claim that blacks tend to have more family members convicted of crimes, holding that this "disparate impact" argument was not persuasive in the Batson context, which looks at motives. Further, other evidence – the race of the prosecutor (black), his being forthcoming and non-evasive supported a finding that his reasons were neutral, and not an invalid "sorting device" to hide discrimination.
The Court pointed out that the defense did not question the prosecutor’s reasons for keeping white jurors who also had family members with convictions. Hence, since the defendant bore the burden of proof, the Court had no basis for questioning the prosecutor’s credibility on this basis.
Turning to the sentence, the Court noted that the district court followed the Guideline instruction to impose the statutory maximum (in Houston’s case, 360 months) when the Guideline sentence exceeded the statutory maximum. The Court rejected the Government’s argument that the error was harmless, finding that the district court "very clearly" imposed a Guideline sentence. The Court reached the same conclusion regarding the sentence on a second count of conviction, for which the district court, again adhering to the Guidelines instruction, imposed a consecutive sentence at the mandatory minimum. The Court vacated the sentence and remanded for resentencing.
Tuesday, July 18, 2006
Griffith: Physical force means physical contact
In U.S. v. Griffith, No. 05-12448 (July 17, 2006), the Court held that a prior conviction for Georgia simple battery qualifies as a predicate offense for violating 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a "misdemeanor crime of domestic violence" to possess a firearm.
The Georgia statute defines simple battery as "intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another." The federal statute defines a misdemeanor crime of domestic violence as one which has as an element the use of physical force. Under a categorical approach which looked only to the elements of the Georgia statute, the Court found that "physical force" includes "physical contact." "A person cannot make physical contact – particularly of an insulting or provoking nature – with another without exerting some level of physical force." The Court sided with two other circuits to have considered the issue, and rejected the Ninth Circuit contrary interpretation of the statute, and the Seventh Circuit inconsistent resolution of the issue in a different context.
The Court rejected the argument that the domestic nature of the relationship in the predicate offense must be an element of the offense. The Court found that this was a fact in the offense, not an element.
The Georgia statute defines simple battery as "intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another." The federal statute defines a misdemeanor crime of domestic violence as one which has as an element the use of physical force. Under a categorical approach which looked only to the elements of the Georgia statute, the Court found that "physical force" includes "physical contact." "A person cannot make physical contact – particularly of an insulting or provoking nature – with another without exerting some level of physical force." The Court sided with two other circuits to have considered the issue, and rejected the Ninth Circuit contrary interpretation of the statute, and the Seventh Circuit inconsistent resolution of the issue in a different context.
The Court rejected the argument that the domestic nature of the relationship in the predicate offense must be an element of the offense. The Court found that this was a fact in the offense, not an element.
Occhicone: Giglio error does not warrant habeas relief
In Occhicone v. Crosby, No. 05-12502 (July 14, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1986 murder.
Pointing out that a state informant falsely testified at trial that he did not have a deal with the prosecution with respect to receiving a lesser sentence for a grand theft charge, Occhicone claimed that the Florida courts applied the wrong standard when they rejected this claim. The Florida courts applied the Brady standard, which requires the defendant to prove a reasonable probability that the result would have been different had the evidence been disclosed. However, Giglio applied to the prosecution’s failure to correct perjured testimony, and it provides for reversal when there is a reasonable likelihood that the exculpatory evidence affected the judgment of the jury.
The Court noted that the standard of review did not matter in this case, because even under a defense-favorable standard, no habeas relief should issue. First, the jury was aware that the witness received a sentence of probation only on the recent charge, and had been told about the witness getting a reduced sentence in another criminal case. Further, the other evidence against Occhicone greatly reduced the significance of the untruthful testimony.
Pointing out that a state informant falsely testified at trial that he did not have a deal with the prosecution with respect to receiving a lesser sentence for a grand theft charge, Occhicone claimed that the Florida courts applied the wrong standard when they rejected this claim. The Florida courts applied the Brady standard, which requires the defendant to prove a reasonable probability that the result would have been different had the evidence been disclosed. However, Giglio applied to the prosecution’s failure to correct perjured testimony, and it provides for reversal when there is a reasonable likelihood that the exculpatory evidence affected the judgment of the jury.
The Court noted that the standard of review did not matter in this case, because even under a defense-favorable standard, no habeas relief should issue. First, the jury was aware that the witness received a sentence of probation only on the recent charge, and had been told about the witness getting a reduced sentence in another criminal case. Further, the other evidence against Occhicone greatly reduced the significance of the untruthful testimony.
Ronda: Corrupt Police Officer Convictions Affirmed
In U.S. v. Ronda, No. 03-15640 (July 13, 2006), the Court (Tjoflat, Hull & Restani b.d.) affirmed the convictions and sentences of former Miami policemen involved in the fabrication of evidence to make police shootngs appear justified, by planting guns at the scenes of the shootings and/or making false statements to investigators.
Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), the Court rejected the argument that there was no federal nexus for their obstruction of justice convictions, because they lied to state, not federal, investigators. It suffices that it was "likely" that the misleading information would be transferred to a federal agent. Here, it was likely that such a federal investigation would occur. The Court distinguished Arthur Andersen v. U.S., 544 U.S. 696 (2005), as involving a different obstruction statute which referenced "an official proceeding," language not included in the statute defendants were charged with violating.
The Court rejected the argument that the jury should have been instructed about Florida’s fleeing felon statute, which authorizes police to shoot at fleeing felons in certain circumstances. The Court noted that the statute itself was introduced into evidence. Further, since the defendants still violated the law by obstructing investigations into the shootings, the justification for the shootings themselves under the fleeing felon statute had no legal impact on the elements of the obstruction offense.
The Court rejected the argument that there was no single over-arching conspiracy, finding "overwhelming" evidence to the contrary.
The Court rejected defendant Gonzalez’ argument that the evidence of perjury was insufficient. Contrary to Gonzalez’ claim that he had merely testified that he was uncertain about whether victims of police shootings had a gun, the transcript shows that Gonzalez said he believed they had a gun.
The Court affirmed the denial of a mistrial based on extrinsic evidence that one juror allegedly gave the jury during deliberations, based on watching tv reports of the trial. Further, though another juror’s home was burglarized during the trial, the trial court instructed the jury that this was in no way related to the trial. The trial court interviewed these jurors separately, and wisely chose to dismiss them.
Turning to the sentences, the Court found no Booker plain error, because the defendants did not show any comments by the district court that the sentences were too severe.
Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), the Court rejected the argument that there was no federal nexus for their obstruction of justice convictions, because they lied to state, not federal, investigators. It suffices that it was "likely" that the misleading information would be transferred to a federal agent. Here, it was likely that such a federal investigation would occur. The Court distinguished Arthur Andersen v. U.S., 544 U.S. 696 (2005), as involving a different obstruction statute which referenced "an official proceeding," language not included in the statute defendants were charged with violating.
The Court rejected the argument that the jury should have been instructed about Florida’s fleeing felon statute, which authorizes police to shoot at fleeing felons in certain circumstances. The Court noted that the statute itself was introduced into evidence. Further, since the defendants still violated the law by obstructing investigations into the shootings, the justification for the shootings themselves under the fleeing felon statute had no legal impact on the elements of the obstruction offense.
The Court rejected the argument that there was no single over-arching conspiracy, finding "overwhelming" evidence to the contrary.
The Court rejected defendant Gonzalez’ argument that the evidence of perjury was insufficient. Contrary to Gonzalez’ claim that he had merely testified that he was uncertain about whether victims of police shootings had a gun, the transcript shows that Gonzalez said he believed they had a gun.
The Court affirmed the denial of a mistrial based on extrinsic evidence that one juror allegedly gave the jury during deliberations, based on watching tv reports of the trial. Further, though another juror’s home was burglarized during the trial, the trial court instructed the jury that this was in no way related to the trial. The trial court interviewed these jurors separately, and wisely chose to dismiss them.
Turning to the sentences, the Court found no Booker plain error, because the defendants did not show any comments by the district court that the sentences were too severe.
Hamaker: Bank Fraud Conviction Upheld
In U.S. v. Hamaker, No. 03-12554 (11th Cir. 2006), the Court affirmed bank fraud convictions, and, on a government cross-appeal, reversed the sentence based on the district court’s erroneous calculation of the "loss" amount. The bank fraud arose out of defendant’s billing a bank for construction work that they did on the personal property of the bank’s CEO.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.
The Court rejected the argument that the defendants were entitled to an "apparent authority" jury instruction, based on their claim that they relied on the authorization of the bank’s vice-president. The Court noted that a bank official is never authorized to empower a fraud on his institution. The instruction would therefore have been erroneous. The defendants were entitled to a "good faith defense" instruction, which was correctly given.
The Court also rejected the argument that a new trial should have been granted after the government produced new documents after the conviction. The Court concluded that the defendants showed no prejudice from the withheld documents. The Court also found no error in withholding disclosure that a government witness was an informant in an unrelated investigation.
The Court further rejected the argument that an FBI agent who testified regarding his compilation of data from documents should have been designated an expert witness. The Court noted that the witness did not give any opinions. Further even if he should been disclosed pre-trial as an expert, no prejudice occurred because he only testified about the contents of defendant’s own documents.
The Court rejected defendants’ challenge to the sufficiency of the evidence, noting the "mountain of evidence" of fraudulent billing.
Turning to the government’s cross-appeal of the sentence, the Court noted that the district court believed that the amount of loss imputable to the defendants’ for sentencing enhancement purposes should be limited to the $178,500 the jury stated should be forfeited, not the approximately $2 million the PSI found had been improperly obtained from the Bank. The Court held that the district court erred in three ways. First, the forfeiture amount was what the jury believed should be divested from the defendants as penalty, but did not measure the harm suffered by the victim bank. Second, the jury’s forfeiture verdict was not a special verdict and therefore did not purport to represent the jury’s estimate of the general losses. Third, the Sentencing Guidelines require judges to make "independent" findings at sentencing. The district court should not per se restrict its loss calculation to the jury’s forfeiture verdict.
Monday, July 17, 2006
Martinelli: Money-laundering instruction need no specify fraud elements
In U.S. v. Martinelli, No. 04-13977 (July 10, 2006) (Dubina, Marcus, Cox), the Court upheld the money-laundering conviction of a defendant, arising out of a scheme to defraud small businesses, by persuading them to pay a fee for finding a buyer of the business, when, in reality, no such service was provided.
The Court rejected Martinelli’s challenge to the search of the business premises. The Court noted that although the affidavit upon which a search warrant was granted did not list the specific names of the complainant small businesses police contacted, "those people and entities were neither anonymous nor confidential." Each victim had personal knowledge of the crime. Moreover, there was a "high level of corroboration," with each complainant reporting that they paid money for the same purpose and never received services. Thus, there was a "fair probability" that contraband would be found at the business locations and the warrants were supported by probable cause.
The Court also rejected the argument that the warrant was overbroad in permitting seizure of "all" company files, noting that such a broad seizure was warranted when there were allegations of a pervasive scheme to defraud.
Reviewing the issue for "plain error," the Court rejected the argument that the money laundering jury instructions were erroneous in failing to instruct regarding the elements of mail fraud. The Court noted that Martinelli was charged with money laundering, not mail fraud. The government did not have to prove the elements of mail fraud, only that Martinelli knew that the funds he laundered "were derived from the specified unlawful activity of mail fraud." The Court further noted that it had found no plain error in like circumstances in U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). [Note: Cox, J., concurring, stated that he thought Silvestri was wrongly decided, because a jury could not find that a defendant knew the proceeds were derived from mail fraud without being instructed on what "mail fraud" involved].
The Court also rejected the argument that the jury should have been instructed on the "materiality" element of mail fraud. The Court noted that Martinelli himself need not have committed a mail fraud offense in order to be guilty of money laundering. Further, the district court, though not specifically defining materiality, told the jury that the specified unlawful activity was a scheme to defraud. Finally, Martinelli’s misreprensentations "were anything but immaterial."
The Court agreed with Martinelli that the district court should have given his requested "good faith" defense jury instruction. However, based on the instruction regarding whether Martinelli knew the proceeds were from a scheme to defraud, and on the "knowingly" element of the offense, that the jury had to find that the act "was done voluntarily and intentionally and not because of accident or mistake," the jury had to rule out the possibility that Martinelli actually harbored a good-faith belief in the legitimacy of the business before it could have found that he knew the money represented proceeds of mail fraud. Finally, the failure to give a good faith instruction did not impair Martinelli’s ability to present a defense, having argued good faith to the jury in closing argument.
The Court also rejected Martinelli’s challenge to the failure to instruct the jury that mere "puffing" or mere carrying on normal business expenses, did not constitute fraud, or money laundering. The Court found that the misrpresentations went beyond mere "puffing," and that the instructions sufficiently excluded the possibility of convicting based on legitimate non-fraudulent expenses.
Turning to the sentence, the Court found Booker error and remanded for resentencing.
The Court rejected Martinelli’s challenge to the search of the business premises. The Court noted that although the affidavit upon which a search warrant was granted did not list the specific names of the complainant small businesses police contacted, "those people and entities were neither anonymous nor confidential." Each victim had personal knowledge of the crime. Moreover, there was a "high level of corroboration," with each complainant reporting that they paid money for the same purpose and never received services. Thus, there was a "fair probability" that contraband would be found at the business locations and the warrants were supported by probable cause.
The Court also rejected the argument that the warrant was overbroad in permitting seizure of "all" company files, noting that such a broad seizure was warranted when there were allegations of a pervasive scheme to defraud.
Reviewing the issue for "plain error," the Court rejected the argument that the money laundering jury instructions were erroneous in failing to instruct regarding the elements of mail fraud. The Court noted that Martinelli was charged with money laundering, not mail fraud. The government did not have to prove the elements of mail fraud, only that Martinelli knew that the funds he laundered "were derived from the specified unlawful activity of mail fraud." The Court further noted that it had found no plain error in like circumstances in U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). [Note: Cox, J., concurring, stated that he thought Silvestri was wrongly decided, because a jury could not find that a defendant knew the proceeds were derived from mail fraud without being instructed on what "mail fraud" involved].
The Court also rejected the argument that the jury should have been instructed on the "materiality" element of mail fraud. The Court noted that Martinelli himself need not have committed a mail fraud offense in order to be guilty of money laundering. Further, the district court, though not specifically defining materiality, told the jury that the specified unlawful activity was a scheme to defraud. Finally, Martinelli’s misreprensentations "were anything but immaterial."
The Court agreed with Martinelli that the district court should have given his requested "good faith" defense jury instruction. However, based on the instruction regarding whether Martinelli knew the proceeds were from a scheme to defraud, and on the "knowingly" element of the offense, that the jury had to find that the act "was done voluntarily and intentionally and not because of accident or mistake," the jury had to rule out the possibility that Martinelli actually harbored a good-faith belief in the legitimacy of the business before it could have found that he knew the money represented proceeds of mail fraud. Finally, the failure to give a good faith instruction did not impair Martinelli’s ability to present a defense, having argued good faith to the jury in closing argument.
The Court also rejected Martinelli’s challenge to the failure to instruct the jury that mere "puffing" or mere carrying on normal business expenses, did not constitute fraud, or money laundering. The Court found that the misrpresentations went beyond mere "puffing," and that the instructions sufficiently excluded the possibility of convicting based on legitimate non-fraudulent expenses.
Turning to the sentence, the Court found Booker error and remanded for resentencing.
Friday, July 14, 2006
Martin: 7-day sentence too low for HealthSouth defrauder
In U.S. v. Martin, No. 05-16645 (July 11, 2006), on a government appeal of a sentence for a defendant convicted in the HealthSouth fraud, the Court vacated the sentence and remanded for resentencing.
After a first sentencing at which the district court imposed no imprisonment and only probation, and after a first remand after appeal based on the district court’s failure to explain its reasons for its significant downward departure, at resentencing the district court imposed just a seven-day sentence, noting the defendant’s substantial cooperation with the government in the prosecution of others involved in the fraud. The government appealed, arguing that, although the defendant should get a sentence reduction for cooperation, the sentence was too low in relation to his guideline range of 108-135 months.
Citing U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006), in which the Court vacated the lenient sentence imposed by the same district court on another executive involved in the HeathSouth fraud, the Court noted that a light sentence for such a massive fraud was not easily reconciliable with the § 3553(a) factors. Here, the district court made a 23-level downward departure. Even Martin’s extremely valuable cooperation was "not a get-out-of-jail-free card." Further, the district court erred by taking into account the "injury" to Martin resulting from his exposure to civil liability for his fraud, a liability which resulted not from his cooperation but from his misconduct. A seven-day sentence is "shockingly short." It failed to serve the purposes of § 3553(a), in failing to reflect the seriousness of the conduct, and to afford adequate deterrence (which the Court found particularly important in the context of white-collar crime). Further, though the district court cited the lack of jail time of the lead defendant, Richard Scrushy, he was not a "valid comparator" because he was acquitted on all counts. Finally, the Court ordered the case reassigned to another district judge, noting its prior reversals of the judge in this and related cases.
After a first sentencing at which the district court imposed no imprisonment and only probation, and after a first remand after appeal based on the district court’s failure to explain its reasons for its significant downward departure, at resentencing the district court imposed just a seven-day sentence, noting the defendant’s substantial cooperation with the government in the prosecution of others involved in the fraud. The government appealed, arguing that, although the defendant should get a sentence reduction for cooperation, the sentence was too low in relation to his guideline range of 108-135 months.
Citing U.S. v. McVay, 447 F.3d 1348 (11th Cir. 2006), in which the Court vacated the lenient sentence imposed by the same district court on another executive involved in the HeathSouth fraud, the Court noted that a light sentence for such a massive fraud was not easily reconciliable with the § 3553(a) factors. Here, the district court made a 23-level downward departure. Even Martin’s extremely valuable cooperation was "not a get-out-of-jail-free card." Further, the district court erred by taking into account the "injury" to Martin resulting from his exposure to civil liability for his fraud, a liability which resulted not from his cooperation but from his misconduct. A seven-day sentence is "shockingly short." It failed to serve the purposes of § 3553(a), in failing to reflect the seriousness of the conduct, and to afford adequate deterrence (which the Court found particularly important in the context of white-collar crime). Further, though the district court cited the lack of jail time of the lead defendant, Richard Scrushy, he was not a "valid comparator" because he was acquitted on all counts. Finally, the Court ordered the case reassigned to another district judge, noting its prior reversals of the judge in this and related cases.
Wednesday, July 12, 2006
Castro: Fast Track Program Not Unreasonable
In U.S. v. Castro, No. 05-16405 (July 12, 2006), the Court rejected a defendant’s challenge to his sentence for illegal reentry, finding no error in the refusal to grant him a downward departure based on the fact that some districts in the United States have a fast-track program that results in sentencing disparities.
Pointing out that some districts, but not his in the Northern District of Georgia, have a fast track program that allows defendants to plead guilty faster and receive a reduced sentence, Castro sought a lesser sentence on this basis, pointing to the disparities it creates among districts. The Court rejected this argument. The Court found that the sentence was consistent with the Guidelines. Further, any disparity created by the fast-track program was not within the scope of § 3553(a)(6), which instructs courts to avoid sentencing disparities. By allowing the fast-track program only in some districts Congress "implicitly determined that the disparity was warranted." In so holding, the Court joined every circuit to have considered the issue.
The Court rejected, on plain error review, an equal protection challenge to the fast track disparity. In the absence of precedent on point from the Supreme Court or the Eleventh Circuit, any error could not be "plain."
Pointing out that some districts, but not his in the Northern District of Georgia, have a fast track program that allows defendants to plead guilty faster and receive a reduced sentence, Castro sought a lesser sentence on this basis, pointing to the disparities it creates among districts. The Court rejected this argument. The Court found that the sentence was consistent with the Guidelines. Further, any disparity created by the fast-track program was not within the scope of § 3553(a)(6), which instructs courts to avoid sentencing disparities. By allowing the fast-track program only in some districts Congress "implicitly determined that the disparity was warranted." In so holding, the Court joined every circuit to have considered the issue.
The Court rejected, on plain error review, an equal protection challenge to the fast track disparity. In the absence of precedent on point from the Supreme Court or the Eleventh Circuit, any error could not be "plain."
Tuesday, July 11, 2006
Nunez: Reasonable Suspicion to stop car exiting suspected grow house
In U.S. v. Nunez, No. 04-14995 (July 11, 2006), the Court reversed the district court’s grant of suppression of evidence, finding that "reasonable suspicion" supported the police’s stop of a vehicle found to contain marijuana.
A police officer was conducting surveillance of a residence in Cape Coral, Florida, believed to be a marijuana grow house. He was told that a search warrant had been obtained for this residence, to search for marijuana. The officer observed Nunez carry a black garbage bag from the residence into a vehicle parked outside the residence. Later, the truck drove away. The officer stopped it, and smelled cannabis. The black garbage back contained 7.4 pounds of marijuana.
The officer had reasonable suspicion for the stop, the Court held, noting that the officer had reason to believe the bag, coming from a suspected marijuana grow house, which was under surveillance, contained marijuana or related contraband.
A police officer was conducting surveillance of a residence in Cape Coral, Florida, believed to be a marijuana grow house. He was told that a search warrant had been obtained for this residence, to search for marijuana. The officer observed Nunez carry a black garbage bag from the residence into a vehicle parked outside the residence. Later, the truck drove away. The officer stopped it, and smelled cannabis. The black garbage back contained 7.4 pounds of marijuana.
The officer had reasonable suspicion for the stop, the Court held, noting that the officer had reason to believe the bag, coming from a suspected marijuana grow house, which was under surveillance, contained marijuana or related contraband.
Monday, July 10, 2006
Poyato: Safety Valve Findings by Judge, not Jury
In U.S. v. Poyato, No. 05-13135 (July 10, 2006), the Court held that a jury’s acquittal on the court of being a felon in possession of a firearm did not affect a sentencing court determination whether a defendant is eligible for a safety valve sentence reduction below the mandatory minimum.
The defendant’s drug trafficking convictions subjected him to a minimum mandatory sentence of 36 months. The defendant would have been eligible for a safety valve sentence reduction below this minimum if, inter alia, he did not possess a firearm in connection with the offense. The district court stated that if it were the fact-finder, it would find that the defendant failed to satisfy this condition because it concluded by a preponderance of the evidence that the defendant possessed a firearm in connection with his drug trafficking. However, the court felt precluded, post-Booker, from making this finding because the jury had acquitted the defendant of the firearm count.
Reversing, the Court stated that the safety valve statute instructs the district court to make the relevant findings, and Booker did not affect this. Further, the safety valve involves sentencing below a minimum, not sentencing above a maximum, and therefore did not trigger the Apprendi principle. Finally, the safety valve statute instruction to sentence pursuant to the Guidelines did not trigger a maximum sentence, but an advisory sentence.
The defendant’s drug trafficking convictions subjected him to a minimum mandatory sentence of 36 months. The defendant would have been eligible for a safety valve sentence reduction below this minimum if, inter alia, he did not possess a firearm in connection with the offense. The district court stated that if it were the fact-finder, it would find that the defendant failed to satisfy this condition because it concluded by a preponderance of the evidence that the defendant possessed a firearm in connection with his drug trafficking. However, the court felt precluded, post-Booker, from making this finding because the jury had acquitted the defendant of the firearm count.
Reversing, the Court stated that the safety valve statute instructs the district court to make the relevant findings, and Booker did not affect this. Further, the safety valve involves sentencing below a minimum, not sentencing above a maximum, and therefore did not trigger the Apprendi principle. Finally, the safety valve statute instruction to sentence pursuant to the Guidelines did not trigger a maximum sentence, but an advisory sentence.
Crisp: Restitution alone not valid reason for 5 hr. sentence
In U.S. v. Crisp, No. 05-12304 (July 7, 2006), on a government appeal, the Court held that the district court erred when, in imposing sentence on a fraud defendant and in taking account of the defendant’s substantial assistance, the sentencing court imposed a sentence of five hours’ incarceration and probation.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.
At sentencing, the district court initially stated that it would impose a sentence of no incarceration, and probation, but when the government pointed out that incarceration was required for a Class B felony offender, the court imposed five hours of incarceration and probation. The district court explained that it wanted the defendant to be able to make restitution to the bank that he had helped defraud.
Reversing, the Court pointed that even post-Booker a below the Guideline sentence based on cooperation must be, in fact, based on cooperation, not on the prospect of restitution.
Turning to the district court’s discretion under § 3553(a), the Court found it unreasonable for a sentencing court to rely so heavily on restittution as a factor in sentencing. "Crisp did not receive so much as a slap on the wrist – it was more like a soft pat." The sentence failed to achieve the other purposes of sentencing besides restitution, e.g. reflect the seriousness of the offense. Moreover, given the defendant’s limited assets and income, the prospect of restitution of more than $400,000 was illusory. The Court also noted the wrong incentive in rewarding a defendant with less jail time, in order to make restitution, as the greater the loss the less the sentence would be.
Friday, July 07, 2006
Stickle: Venue in Southern District of Florida ok
In U.S. v. Stickle, No. 05-12077 (July 6, 2006), the Court rejected the arguments of the owner of a transportation company who was convicted of polluting international waters, after it dumped wheat contamined from oil into the Indian Ocean.
The defendant claimed that he was improperly charged with violating 33 C.F.R. § 151.10(a), which criminalizes dumping by a "ship other than an oil tanker." The ship in question was originally an oil tanker, but was later certified, inspected and approved for use as a freight vessel. The Court concluded that the indictment was therefore proper, noting that the approval forms the ship obtained clearly referred to use as a freight vessel, not an oil tanker.
The Court also rejected the argument that venue should have proved beyond a reasonable doubt, adhering to its caselaw which provides that matters that are not elements of the crime should be proved beyond a reasonable doubt.
The Court rejected the argument that venue did not exist in the Southern District of Florida for the conspiracy count, when the locus delicit was the Indian Ocean, and the only act committed in Florida was a co-conspirator’s lie in response to a question from a law enforcement agent investigating the offense. The Court held that "the jury reasonably concluded that the false statement impeded the inviestigation." [Query: What about the caselaw which holds that there is a distinction between a conspiracy and subsequent acts of concealment, e.g. Grunewald v. U.S., 353 U.S. 391 (1959)?].
The Court also rejected the argument that there was no venue in the Southern District of Florida for the substantive illegal discharge offense. The Court noted that because the offense occurred on the high seas, the last known residence of one of the offenders governed venue, and here one offender lived in the Southern District of Florida.
The defendant claimed that he was improperly charged with violating 33 C.F.R. § 151.10(a), which criminalizes dumping by a "ship other than an oil tanker." The ship in question was originally an oil tanker, but was later certified, inspected and approved for use as a freight vessel. The Court concluded that the indictment was therefore proper, noting that the approval forms the ship obtained clearly referred to use as a freight vessel, not an oil tanker.
The Court also rejected the argument that venue should have proved beyond a reasonable doubt, adhering to its caselaw which provides that matters that are not elements of the crime should be proved beyond a reasonable doubt.
The Court rejected the argument that venue did not exist in the Southern District of Florida for the conspiracy count, when the locus delicit was the Indian Ocean, and the only act committed in Florida was a co-conspirator’s lie in response to a question from a law enforcement agent investigating the offense. The Court held that "the jury reasonably concluded that the false statement impeded the inviestigation." [Query: What about the caselaw which holds that there is a distinction between a conspiracy and subsequent acts of concealment, e.g. Grunewald v. U.S., 353 U.S. 391 (1959)?].
The Court also rejected the argument that there was no venue in the Southern District of Florida for the substantive illegal discharge offense. The Court noted that because the offense occurred on the high seas, the last known residence of one of the offenders governed venue, and here one offender lived in the Southern District of Florida.
Tamari: Search of Arriving Vehicle Ok
In U.S. v. Tamari, No. 05-10618 (July 6, 2006), the Court rejected a defendant’s Fourth Amendment challenge to a search of his vehicle.
Law enforcement agents obtained a search warrant to search a rural property in Southwest Miami. The warrant authorized search of vehicles "on the property." While the search of the property was underway, the defendant appeared on the property, behind the wheel of a Hummer. After evasive answers and a failure to produce identification and the vehicle’s registration, the police searched his vehicle. It ultimately found evidence connecting Tamari to a drug trafficking conspiracy, for which he was convicted by a jury.
The Court rejected the argument that the warrant to search vehicles "on the property" did not authorize a search of a vehicle which was driven onto the property during the search, citing U.S. v. Alva, 885 F.2d 250 (5th Cir. 1989), which "passed on [this] precise question," and so also so held.
The Court stated that, in the alternative, the automobile exception applied, because the circumstances presented probable cause to search Tamari’s vehicle. The agents were searching a property which they believed was part of a large-scale drug conspiracy. They had already seized cocaine, cash and firearms on the premises when Tamari arrived in his vehicle. He gave evasive answers and was unable to produce identification or the vehicle’s registration.
Moreover, once a canine alerted to the vehicle this alone gave the agents probable cause for their search.
Law enforcement agents obtained a search warrant to search a rural property in Southwest Miami. The warrant authorized search of vehicles "on the property." While the search of the property was underway, the defendant appeared on the property, behind the wheel of a Hummer. After evasive answers and a failure to produce identification and the vehicle’s registration, the police searched his vehicle. It ultimately found evidence connecting Tamari to a drug trafficking conspiracy, for which he was convicted by a jury.
The Court rejected the argument that the warrant to search vehicles "on the property" did not authorize a search of a vehicle which was driven onto the property during the search, citing U.S. v. Alva, 885 F.2d 250 (5th Cir. 1989), which "passed on [this] precise question," and so also so held.
The Court stated that, in the alternative, the automobile exception applied, because the circumstances presented probable cause to search Tamari’s vehicle. The agents were searching a property which they believed was part of a large-scale drug conspiracy. They had already seized cocaine, cash and firearms on the premises when Tamari arrived in his vehicle. He gave evasive answers and was unable to produce identification or the vehicle’s registration.
Moreover, once a canine alerted to the vehicle this alone gave the agents probable cause for their search.
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