Evans: Victim's fax part of "lulling" of fraud perpetrator

In U.S. v. Evans, No. 05-10624 (Dec. 26, 2006), the Court held that the jury was entitled to find that a fax from a fraud victim to the perpetrator of a fraud was"lulling" activity for purposes of satisfying the wire fraud statute, 18 U.S.C. § 1343.
The Court noted that a communication from a victim can qualify as "lulling." The Court otherwise rejected Evans’ arguments that the fax should not be considered lulling. The Court noted that the fraud scheme – getting a purchaser to continue to send goods to a seller who was, in reality, insolvent – had not yet reached "fruition" since the "lulling" activity was still going on, as the seller failed to alert the buyer of its true financial position. Further, here, Evans responded to the victim’s fax, thereby continuing the lulling, and delaying the discovery of his fraud by authorities. Further, the indictment need not have alleged that Evans intended from the inception of his fraud to engage in lulling activity.

Thompson: 851 notice for 1st trial valid for 2nd trial

In U.S. v. Thompson, No. 05-15052 (Dec. 27, 2006), the Court affirmed the defendant’s convictions for drug and weapons possession, and the life sentence imposed pursuant to 21 U.S.C. § 841 for a defendant with three prior drug felony convictions.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Even though the defendant was not in the apartment in which drugs and guns were found, his papers, including a print out of telephone numbers from his cell phone, were found there.
The Court also rejected the argument that the government did not timely serve him with notice of its intent to seek a sentence enhancement based on prior convictions, as required by 21 U.S.C. § 851(a)(1). The Court noted that Thompson had been served with the notice, in timely fashion, prior to his first trial on the same charges – which ended in a mistrial. This made it unnecessary for the government to refile the notice prior to Thompson’s second trial on these charges. Further, as to certain charges that were newly added to Thompson’s indictment for his second trial, the initial § 851 notice also sufficed. The Court found that this notice gave Thompson adequate notice to challenge the prior convictions, should he have wished to do so, and made him aware of the potential downside of a conviction at trial.

Bohannon: Affirming intent to photograph enhancement

In U.S. v. Bohannon, No. 05-16492 (Dec. 26, 2006), the Court affirmed a 120-month sentence imposed on a defendant convicted of using the internet to entice a minor into sexual activity.
The Court rejected the defendant’s challenge to the facts supporting the enhancement, under USSG § 2G2.1, based on Bohannon’s intention to produce a visual depiction of sexually explicit conduct with a minor. The Court noted that a digital camera was found in the vehicle Bohannon drove to meet with the police officer posing as a 15-year old, and that a search of Bohannon’s home uncovered photographs of minors in various stages of undress. This evidence, the Court found, supported the enhancement.
The Court rejected a reasonableness challenge to the 120-month sentence, noting that the district court’s discussion of the § 3553(a) factors showed it had considered these factors, and that this sentence was below the low-end guideline range of 135 months.

Kinard: Anhydrous Ammonia enhancement vacated

In U.S. v. Kinard, No. 06-10043 (Dec. 20, 2006), the Court (Anderson, Barkett, Goldberg. b.d.) reversed a sentence enhancement for defendants convicted manufacture of amphetamine. The enhancement was based on the defendants’ discharge of anhydrous ammonia. However, the applicable Guideline provided for an enhancement only where one of four specified federal environmental statutes were violated. Here, no violation of any of these statutes was established by the government. Accordinly, the Court vacated the enhancement.

Compas-Diaz: Fast-Track Creates No Equal Protection Violation

In U.S. v. Campos-Diaz, No. 05-16082 (Dec. 19, 2006), the Court joined all other Circuits to have considered the issue and held that no equal protection violation occurs when a defendant charged with illegal re-entry into the United States is not given the opportunity to qualify for a lower sentence based on the Attorney General’s "fast-track" disposition program. "The fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources and easing congestion in judicial districts with a high volume of immigration cases."

Kennard: Bilking Church of $ Conviction Affirmed

In U.S. v. Kennard, No. 05-12742 (Dec. 15, 2006), the Court affirmed the convictions of two brothers for bilking hundreds of churches and other non-profit organizations out of millions of dollars.
The Court rejected the argument that it was error to admit evidence of – and instruct the jury about -- one defendant’s post-indictment flight. The Court noted that this evidence was relevant because it made the defendant look guilty.
The Court also rejected the argument that it was error to exclude the exculpatory testimony of the defendants’ attorney, taken during an SEC investigation of the case. The Court noted that prior deposition testimony can only be introduced if a witness is unavailable (a condition that was satisfied here) and if the party against whom the testimony was offered had a "similar opportunity" to develop the testimony in the prior proceeding. Here, the defendants’ failed to meet their burden of showing that the SEC lawyers who took the lawyer’s deposition had a sufficient similarity of motives to that of the prosecutors in the brothers’ criminal case.
The Court also rejected a sufficiency of the evidence challenge to a money laundering conspiracy conviction, as well as a claim of a variance between the conspiracy charged and the conspiracy proved at trial.
The Court also rejected a challenge to a deliberate ignorance jury instruction, noting that such error is harmless where, as here, the jury could have convicted based on a defendant’s actual knowledge of the criminality.
The Court further rejected a challenge to a sentence, noting that since the actual 38-month sentence was within the Guideline range, no "substantial rights" were violated, and no "plain error" therefore occurred.

Chandler: No Ineffective Failure to Seek Venue Change

In Chandler v. McDonough, No. 06-11190 (Dec. 18, 2006), the Court rejected a death-row inmate’s claim that his trial counsel rendered ineffective assistance by failing to move for a change of venue. Noting that its en banc decision in U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006) had created a high burden on a party seeking to establish presumed prejudice based on a failure to change venue, the Court stated that it was now difficult to establish the requisite "prejudice" for ineffective assistance in failing to seek a change of venue. The Court also upheld the denial of an evidentiary hearing on the ineffectiveness issue, noting that the written expert report regarding the venue was part of the record, and that the defendant had failed to proffer the evidence he would present at a hearing.

Bennett: Prior Burglary Convictions Qualify for 924(e)

In U.S. v. Bennett, No. 05-15376 (Dec. 13, 2006), the Court (Black, Hull, Conway b.d.), rejected the defendant’s argument that he was erroneously classified as an armed career criminal.
The Court pointed out that when Bennett pled to guilty to the offense of possession of a firearm by a convicted felon, he admitted to having three prior felony burglary convictions, as charged in the indictment. Further, Bennett never objected to the factual allegations in the PSI, which described his prior offenses as burglaries. The Court held that Bennett waived the argument, by failing to raise it earlier, that the probation officer should not have looked to materials outside specific court documents when assessing his prior criminal convictions.
The Court, however, reversed the offense level portion of the sentence. The Court noted that based on the district court’s finding that the possession of the firearm was not connected with a violent felony, the sentence offense level should have been one level lower. Since this would have resulted in a lower sentence guideline range, and since the sentencing court said it wanted to impose a sentence near the low end of the applicable guideline range, the error was "plain." The Court therefore vacated the sentence.

Cedeno: "loss" amount does not include both repair and fair market value

In U.S. v. Cedeno, No. 05-16616 (Dec. 6, 2006) (Black, Carnes, Barkett), the Court held that the sentencing court erred in its "loss" calculation, and reversed the sentence.
The defendants made off with $1,485,000 worth of watches. The store got the watches back after the police recovered them. The store spent $13,939 repairing the damage some of the watches suffered during the smash-and-grab job. The issue was whether, to calculate the "loss" amount, the cost of the repair should have been added to the value of the watches before any damage. The district did add these two, resulting in a loss amount in excess of $1.5 million, that is, in excess of the original fair value of the watches.
The Court noted that the district court used the wrong guideline in calculating the loss. Further, the correct guideline capped the "loss" amount at fair market value, which, by definition, could not exceed the value of the watches before the smash-and-grab. The Court rejected the district court’s attempt to explain its calculation as being based on "the perspective of the victim." Here, the jewelry store recovered the watches, so the $1.5 million "loss" amount far exceeded its actual loss. The Court also noted that allowing a sentencing court to disregard the recovery of stolen goods would create a "backwards incentive." In any event, this approach made no sense, as it effectively doubled the value of the goods, once for being stolen, and again for being damages or destroyed.

Lorenzo: Post-sentencing rehabilitation cannot count under 3553(a)

In U.S. v. Lorenzo, No. 05-16119 (Dec. 8, 2006) (Pryor, Fay, Reavley), the Court, on a government appeal, reversed a sentence where the district court, on resentencing with the defendant released from prison, had resentenced the defendant to time served, despite a guideline range of 24-30 months (less time served), on the basis of the defendant’s post-release conduct, which showed his ability to maintain a job and be employed in the community.
Reversing, the Court held that § 3553(a)(1), which indicates that "the history and circumstances of the defendant" should be taken into account at sentencing, should not include post-initial sentencing history and characteristics. The Court reasoned that taking post-sentencing conduct into consideration would "inequitably benefit the few defendants with the opportunity for re-sentencing and create unwarranted sentence disparities." In addition, such consideration was at odds with the Policy Statements of the Sentencing Guidelines.

Barbour: No right to postconviction counsel

In Barbour v. Haley, No. 06-10920 (Dec. 8, 2006), the Court rejected a claim under 42 U.S.C. § 1983 by indigent Alabama death-sentenced inmates that they had a constitutional right to state-appointed counsel or some form of lesser form of state-provided legal assistance in state post-conviction proceedings.
Relying on Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion), the Court held that death-sentenced inmates had no right to counsel in postconviction proceedings. The Court also held that because the inmates failed to specify the lesser form of legal assistance which they claimed to be entitled to, this aspect of the claim also failed.