Eleventh Circuit Court of Appeals - Published Opinions

Friday, October 27, 2006

Revolorio-Ramo: No Due Process Violation in Unintentional Destruction of Evidence

In U.S. v. Revolorios-Ramo, No. 03-14361 (Oct. 26, 2006), the Court rejected the argument that Due Process required the dismissal of an indictment for conspiracy to possess cocaine while on board a vessel, in violation of 46 U.S.C. app. § 1903, because the U.S. Navy destroyed, for unseaworthiness, the fishing vessel on which the defendants were apprehended off the coast of Guatemala, thereby destroying the exculpatory evidence that the vessel was merely a fishing vessel, and that the defendants did not intend to be involved in drug trafficking.
The Court noted that some evidence of hooks and bait aboard the vessel was presented at trial. Therefore, the question was whether this equipment was of genuine fishing quality. The potentially excuplatory evidence aboard the vessel would merely have bolstered the defendants’ defense. Further, the defendants had an opportunity to cross-examine the law enforcement officers about the nature of the fishing equipment.
In addition, the law enforcement agent did attempt to preserve evidence, though his photographs did a "singularly poor job." But his bad photos were not taken in bad faith. Thus, there was no evidence of "official animus." "In short, the government clearly attempted, albeit unsuccessfully and perhaps incompetently, to document the contents of a vessel deemed unseaworthy by the Coast Guard prior to destroying her." No Due Process violation occurred.

Wednesday, October 25, 2006

Sweet: Habeas Petition is Untimely

In Sweet v. Secretary, Dept’ of Corrections, No. 05-15199 (Oct. 23, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1990 murder.
The Court found that the federal habeas petition was untimely because Sweet’s most recent state post-conviction filing was itself untimely under state rules and therefore not "properly filed," and therefore did not toll the time period for filing for federal habeas relief. Citing Pace v.DiGuglielmo, 544 U.S. 408 (2005), the Court noted that a filing which has been held untimely by a state court is not properly filed within the meaning of the AEDPA’s time computation provisions.
The Court rejected Sweet’s equal protection argument. Sweet pointed out that even though the Supreme Court of Florida had denied him relief, it had addressed on the merits the claims of identically-situated inmates, untimeliness notwithstanding. Finding that Sweet failed to allege "invidious" discrimination, the Court rejected this claim.
The Court also rejected the argument that the State waived its untimeliness argument by failing to raise it in their initial response. The Court pointed out that the State raised untimeliness in a summary judgment motion filed 36 days after its response. Citing Day v. McDonough, 126 S.Ct. 1675 (2006), the Court reasoned that since a Magistrate Judge could sua sponte point out to the State the untimeliness of a habeas petition, it was necessarily unproblematic for the State to raise the objection on its own, 36 days after its initial response.

Wednesday, October 18, 2006

Grossman: No habeas relief for Florida death row inmate

In Grossman v. McDonough, No. 05-11150 (Oct. 16, 2006), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1984 murder.
The Court rejected Grossman’s habeas challenge based on the admission of a co-conspirator’s inculpatory confession. Though recognizing, as did the Florida courts, that the evidence should not have been admitted under Bruton and its progeny, the Court held that the error was harmless in light of the overwhelming evidence of guilt.
The Court also rejected Grossman’s Brady claim. The Court found that even if there had been improper withholding of evidence by the prosecution, no Brady violation occurred because there was no possibility that the outcome of the proceeding would have been different.
Finally, the Court rejected the argument that defense counsel was ineffective at the penalty phase. The Court found that the many "post-hoc" affidavits of potential witnesses did not demonstrate deficient performance. Even if performance was ineffective, prejudice did not result. The Court also found no "golden rule" violation by the prosecutor, finding that the prosecutor merely described the circumstances of the victim’s death – circumstances which were "plainly relevant to whether the murder was henious, atrocious, or cruel."

Osborne: Habeas Denied: Counsel Not Ineffective

In Osborne v. Terry, No. 04-16751 (Oct. 16, 2006), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for two 1990 murders.
The Court rejected claims that trial counsel was ineffective during the guilt phase for failing to put on exculpatory evidence regarding the manner in which the victims were killed. The Court noted that since the defendant confessed to the killings, much of the evidence regarding the killings would have been irrelevant, or not of sufficient significance to alter the outcome of the trial.
The Court also rejected claims that counsel was ineffective during the penalty phase. The Court noted that counsle was not ineffective for failing to put on evidence of Osborne’s use of drugs, when Osborne himself had denied any drug use to his attorney.
The Court also affirmed the state trial court finding that there was no evidence to support Osborne’s claim that his attorney failed convey to him a plea of life, on account of the attorney’s racial animosity toward Osborne. The Court affirmed the finding that the offer was conveyed, and declined by Osborne. Further, the claim was procedurally barred.

Matthews: Florida 3rd-Degree Burglary is "Violent Felony"

In U.S. v. Matthews, No. 05-13447 (Oct. 12, 2006), the Court resolved a question it recently left open in U.S. v. Day, 2006 WL 2739348, * 4 n. 4 (11th Cir. Sept. 27, 2006): whether a third-degree burglary under Florida law qualifies as a violent felony under the Armed Career Criminal Act because the offense involves "conduct that presents a serious potential risk of physical injury to another."
The Court held that third-degree Florida burglary does qualify as a violent felony, even though this offense can merely involve an intrusion upon the curtilage of a structure. The Court noted that Florida defined the term curtilage narrowly, to include only an enclosed area surrounding a structure. "Regardless of whether a burglar breaches the roofed portion of a structure, his unlicensed entry into the enclosed area surrounding that structure may bring him into close physical proximity with the same persons he might encounter were he to enter the structure." Just an attempt to commit burglary can qualify as a "violent felony," a Florida third-degree burglary can also so qualify.

Thursday, October 12, 2006

Bradberry: Gang Affiliation Not Unduly Prejudicial

In U.S. v. Bradberry, No. 06-11757 (Oct. 11, 2006), the Court affirmed the conviction and sentence of a defendant convicted of possession of a firearm in a school zone, in violation of 18 U.S.C. § 922(q)(2)(A).
The Court rejected the argument that the admission of evidence of Bradberry’s gang affiliation was unduly prejudicial. The Court noted that evidence that the defendant and others were part of the same gang made the government’s theory of the case "more likely." The balancing of the prejudicial impact of the testimony against its probative value presented a close question. The district court’s decision thereforre fell within the ambit of harmless error.
The Court also rejected Bradberry’s challenge to the obstruction of justice enhancement. The Court noted that the enhancement was based on perjurious testiomny put on by Bradeberry’s witnesses. It was permissible to make Bradberry to suffer the consequences of suborned testimony he put on.http://www.ca11.uscourts.gov/opinions/ops/200611757.pdf

Tuesday, October 10, 2006

Hristov: Suitcase contents can be basis for sentence increase

In U.S. v. Hristov, No. 05-14122 (Oct. 4, 2006), the Court rejected the argument that a district court, for sentencing purposes, improperly relied on the quantity of drugs inside a suitcase, when the defendant claimed that he was given the suitcase not knowing what it contained.
The Court noted that the knowledge element of a violation of a criminal statute can be proved by demonstrating deliberate ignorance. Here, there was sufficient evidence of deliberate ignorance. Hristov was paid $5000 to transport a briefcase, in his own car, from Las Vegas NV to St. Petersburg FL. He received the briefcase from someone he had never previously met and delivered it to someone from whom he would later purchase cocaine. He admitted that transporting the briefcase made him nervous, and that cocaine could have been in the briefcase.
The Court also rejected the argument that the time frame of his conduct fell outside the period of the indictment. The Court noted that an open-ended start date can be alleged in an indictment, as was done here. Moreover, the defendant never objected at sentencing to the time period outlined in the PSR.

Eckhard: Upholding Obscene Phone calls conviction

In U.S. v. Eckhardt, No. 95-12211 (Oct. 4, 2006), the Court affirmed convictions of violating the Communications Decency Act, 47 U.S.C. § 223.
The Court rejected the argument that § 223(a)(1)(C)’s prohibition on "annoying, abusive, harassing, or threatening" telephone calls infringed the First Amendment and was unconstitutionally vague. Here, the "overarching purpose" of Eckhard 200 "sexually laced" calls in one year to a victim was "to harass and to frighten." This type of speech is not constitutionally protected. The statute was not too vague because "citizens need not guess what terms such as ‘harass’ and ‘intimidate’ mean."
The Court also rejected a sufficiency challenge to the convictions for violating § 223(a)(1)(A), which criminalizes "obscene" use of a telecommunications device. The Court concluded that Eckhardt’s phone calls were obscene. His "scant comments about union activity were incidental inclusions in his attempt to annoy and harass."
The Court rejected a Rule 404(b) challenge to the admission of phone calls made 10 years earlier than, and three years after, the charged phone calls. The Court noted that recordings of these calls were admissible to prove the identity of the caller (which Eckhard contested). Further, proof of a prior conviction of similar conduct was admissible to "show a criminal purpose."
The Court also rejected a challenge to improper comments during the prosecutor’s closing, finding them to limited to demonstrate a trial replete with errors. Moreover, the weight of the evidence would have led to a conviction regardless of the prosecutor’s statements.
The Court further rejected a challenge to the jury instruction which added the words "lewd, lascivious, filthy or indecent" to the definition of obscenity. Though recognizing that the words were not in the statute, and that Eckhardt correctly asked that they be removed from the jury instruction, the Court found that the words did not impair Eckhard’s chosen defense, which was that he did not make the alleged phone calls. The Court also rejected a challenge to the jury instruction based on their failure to charge proof of specific intent. The Court noted that Eckhardt had not challenged the instruction at trial. Further, the hundreds of obscene phone calls would allow any reasonable juror to find an intent to harass.
Turning to sentencing, the Court upheld the district court’s reliance on uncharged phone calls, which occurred 10 years earlier than the charged offenses, as a basis for enhancing the sentence. Noting the failure of counsel to object at sentencing, and the lack of precedent interpreting the Guidelines in this specific context, the Court held that any error would not be "plain."

Wednesday, October 04, 2006

Smith: Habeas untimely where no GA St. Ct review sought

In Pugh v. Smith, No. 05-12100 (Sept. 29, 2006), the Court held that a habeas petition was untimely. After a first direct appeal of his Georgia conviction, the defendant did not seek review of his Georgia conviction in the Georgia Supreme Court. Consequently, the "conclusion of direct review" – that is, the date on which the one-year period for filing a habeas petition began to run – occurred not at the conclusion of the 90-day period for filing a certiorari petition with the United States Supreme Court. Rather, since no U.S. Supreme Court review was available to Smith (because he never sought review in the Georgia Supreme Court), the period began to run 10 days after the adverse ruling of the Georgia Court of Appeals, that is, on the date after which he could no longer seek review of his conviction in the Georgia Supreme Court.
The Court also found no basis for "equitable tolling."

Machado: Untimely Request for Return of Forfeited Property

In U.S. v. Machado, No. 05-11420 (Oct. 2, 2006), the Court rejected a defendant’s appeal of a forfeiture order.
The defendant claimed that the district court lacked subject matter jurisdiction when it entered the forfeiture order, because it entered the order nearly one year after entering the judgment of conviction, in violation of Fed. R. Crim. P. 32(d)(2), which requires forfeiture orders to be "included" in the judgment. Dismissing this appeal, the Court pointed out it lacked jurisdiction to consider the issue, because the appeal was filed outside the time limits of Fed. R. App. P. 4.
The Court also rejected Machado’s appeal of the denial of his Fed. R. Crim. P. 41(g) motion for the return of property. Noting that a district court has equitable jurisdiction over an untimely 41(g) motion, the Court found that since Machado was seeking return of the fruits of his crime, it would have been inequitable to grant him relief. Further, the claim was time-barred, because it was brought more than six years, outside the time limit for suits against the government set forth at 28 U.S.C. § 2401(a).
Finally, the Court rejected Machado’s reliance on the All Writs Act, 28 U.S.C. § 1651(a). This law empowers courts to fashion remedies in extraordinary cases. But: "This is not an extraordinary case that merits use of extraordinary authority."