Dean: Tax Evader 84-months sentence is reasonable

In U.S. v. Dean, No. 06-13946 (May 25, 2007), the Court affirmed the conviction and sentence of a tax protester defendant convicted of tax evasion.
The Court rejected the argument that the district court abused its discretion when it denied Dean’s motion challenging the district’s failure to comply with the grand and/or petit jury selection procedures of 28 U.S.C. § 1867(a). The Court agreed with the district court that the motion was untimely.
The Court also rejected the defendant’s challenge to the district court’s jury instructions on his "good faith" defense, finding that, even when coupled with a "willful blindness" instruction, they complied with Cheek v. U.S, 498 U.S. 192 (1991).
The Court also rejected a reasonableness challenge to Dean’s sentence, finding that the 84 month sentence was reasonable in light of the statutory maximum of 60 months for his tax evasion convictions and the 24 months maximum for his related convictions on other counts.

Amedeo: New Variances Differ From Old Departures

In U.S. v. Amedeo, No. 05-11806 (May 24, 2007), the Court affirmed a 120-month sentence imposed on resentencing, after an original 216-month sentence was vacated on a first appeal.
At his original sentencing, pre-Booker, the district court imposed upward departures based on findings that Amedeo committed the drug trafficking offense for which he was convicted in order to facilitate a sexual assault, that this resulted in the death of the person (infected by hepatitis C), and that Amedeo distributed drugs to multiple minors. On appeal, the Eleventh Circuit vacated the departures because they were not based on "relevant conduct."
At resentencing, post-Booker, the Court imposed a 120-month sentence – above the Guideline range of 37-46 months, citing the seriousness of the offense.
The Court rejected the argument that the sentencing judge should have recused himself. The Court noted that the judge’s opinion of Amedeo, formed by prior proceedings, was not the type of "personal" or "extrajudicial" bias that can support recusal.
The Court also rejected the argument that the law of the case doctrine precluded the district court at resentencing from relying on factors that the Court had found invalid on appeal. The Court noted that the law of the case doctrine does not apply when a change in controlling law occurs. Here, Booker constituted a change in controlling law. While the district court could no longer consider certain non-relevant conduct as the basis for a departure, it could consider this conduct as the basis for a variance under the Guidelines pursuant to 18 U.S.C. § 3553(a). [Note: this holding means that the scope of conduct which a district court can take into account post-Booker is even broader than the Guidelines concept of "relevant conduct"].
The Court further rejected the argument that 18 U.S.C. § 3742(g)(2), which prohibits sentencing courts from considering new grounds for a sentence on resentencing, precluded the district court’s reliance on new factors at resentencing. The Court noted that this statute took effect (shortly) after Amedeo’s original sentencing, was not retroactively applicable, and therefore could not be relied on by Amedeo.
The Court rejected the argument that the retroactive application of Booker violated the Ex Post Facto doctrine, noting its prior precedent so holding, and that the 40-year statutory maximum provided Amedeo sufficient warning of the penalty for his crime.
Finally, the Court rejected Amedeo’s reasonableness challenge to his sentence. The Court recognized that in at least one respect, the district court imposed an upward variance based on a factor (abuse of the attorney-client relationship) that had already served as the basis for a Guideline specific offense enhancement under USSG § 3B1.3. But based on the "extraordinary" circumstances of the case (presumably, the death of a victim) it was "reasonable" for the sentencing court to consider under § 3553(a) an aspect of Amedeo’s conduct that it had already considered in imposing an enhancement. [Note: the Court’s finding of "extraordinary" circumstances to justify the variance suggests that such "double counting" would only be valid if a departure-like justification for the sentence enhancement existed].

Quirante: Safety Valve Mandatory, Not Discretionary

In U.S. v. Quirante, No. 06-13527 (May 21, 2007), the Court vacated the sentence because the sentencing court erroneously believed that the safety-valve statute, 18 U.S.C. § 3553(f), merely gave it discretion to sentence a defendant pursuant to the Guidelines, instead of the mandatory statutory minimum. In reality, the safety-valve mandated a sentence pursuant to the Guidelines.
The statutory mandatory minimum for Quirante’s drug offense was 120 months. His advisory guideline range was 70-87 months. Quirante met all the requirements of the safety-valve. Nevertheless, the district court imposed a 120 month sentence, because it believed that the safety-valve was merely "discretionary," and it did not believe the defendant’s conduct warranted application of the safety-valve.
Reversing, the Court pointed out that the language of the safety-valve statute is mandatory, not discretionary. "The statutory language states that when a defendant . . . meets the five specified [safety-valve] requirements (as Quirante did), ‘the court shall impose a sentence pursuant to the guidelines.’ The word ‘shall’ does not convey discretion."
While remanding the case for resentencing, the Court expressed no view on whether a sentence higher than the 70-87 months advisory Guideline range would have been reasonable in the exercise of the sentencing court’s post-Booker § 3553(a) discretion. The Court also noted it was not addressing whether the safety-valve applies when the Guideline range is above the statutory minimum.

Ward: Conspiracy Acquittal Leaves Sufficient Support for Fraud Convictions

In U.S. v. Ward, No. 05-11622 (May 16, 2007), the Court affirmed the convictions and sentence of a defendant convicted of mail and wire fraud, in charges arising out of his involvement in a Ponzi scheme.
The jury acquitted Ward of the conspiracy count, but convicted him on substantive mail fraud counts. Ward argued that, in view the conspiracy acquittal, and of the fact that he did not "personally commit" each element of wire and mail fraud, the evidence on these counts was insufficient. The Court rejected this argument as contrary to law: "a defendant may be convicted of mail fraud without personally committing each and every element of mail fraud, so long as the defendant knowingly and willfully joined the criminal scheme, and a co-schemer used the mails for the purpose of executing the scheme." Here, the government presented "more than enough evidence" to establish Ward’s knowing participation in the fraud scheme.
The Court also rejected the argument that the trial court constructively amended the indictment by instructing the jury that it could convict Ward on the mail and wire fraud even if it could not reach a verdict on conspiracy. Ward pointed out that each of the substantive counts charged that unlawful acts were undertaken for the purpose of executing the conspiracy. The Court pointed out that these counts also alleged that the acts were undertaken for the purpose of obtaining money by false pretenses. Further, conspiracy and substantive fraud are separate offenses. The "surplusage" of the indictment could be deleted without causing legal error. The deletion of the conspiracy language did not alter the mens rea for the offense, and did not broaden the bases for conviction.

Martinez: Physical Contact suffices for more serious assault than simple assault

In U.S. v. Martinez, No. 06-13429 (May 17, 2007), the Court affirmed a defendant’s conviction for forcibly assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1). The offense arose out of the defendant-inmate’s striking a correction officer with what was or appeared to be urine.
The defendant challenged the jury instruction that a forcible assault "means an assault which results in physical contact which does not involve a deadly weapon or bodily harm." The defendant claimed that the more serious level of assault with which he was charged under § 111(a)(1) – more serious than "simple assault" – required a finding of a threat to inflict serious bodily injury. The Court rejected this argument, finding that an assault with actual physical contact suffices to prove more than just simple assault.
The Court rejected Martinez' challenge to the restitution order, which required him to pay the corrections officer $1,801.63 for the medical tests the officer paid for after the assault. The Court noted that restitution was authorized under the Mandatory Victims Restitution Act.

Llanos-Agostadero: Battery on Pregnant Woman is "Crime of Violence"

In U.S. v. Llanos-Agostadero, No. 06-14382 (May 15, 2007), the Court held that a Florida conviction for the offense of aggravated robbery on a pregnant woman qualified as a "crime of violence" for purposes of the 16-level sentence enhancement of USSG § 2L1.2(b)(1)(A)(ii).
The Court noted that the Florida offense involved actual and intentional touching or striking another person, or intentionally causing bodily harm to another person. Citing analogous cases involving analogous battery offenses, the Court concluded that the battery offense at issue constituted a crime of violence.
The Court also rejected a reasonableness challenge to the sentence based on the unavailability of the Attorney General’s "fast-track" program in the district in which the defendant was sentenced. Citing U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006), the Court noted that the fast-track program does not create unwarranted disparities in sentences, or sentences "greater than necessary to achieve the purposes of § 3553(a).

Johnson: Obstruction convictions and enhancement affirmed

In U.S. v. Johnson, No. 06-13564 (May 11, 2007), the Court affirmed obstruction of justice convictions of a defendant who lied about his communications with a Marathon, Florida landowner about plans to illegally fill the water on his property.
The Court rejected Johnson’s argument that the evidence was insufficient to convict since the government was still able to convict the landowner of environmental violations. The Court noted that the statutes criminalize the interference with the administration of justice, and the tendency to influence the government in its decisionmaking process.
The Court also rejected Johnson’s challenge to his sentence enhancement, under USSG § 2J1.3(b)(2), for perjury which resulted in "substantial interference with the administration of justice." The government’s claim was not that the costs of investigating Johnson’s conduct were high, but that the costs of investigating the landowner’s offense were greater as a result of Johnson’s obstruction. The Court noted that the government was forced to expend additional resources to contact other witnesses. The Court concluded that the sentencing court’s finding was not "clearly erroneous."
Finally, the Court rejected a "reasonableness" challenge to Johnson’s 24-month sentence. This sentence, at the low end of the guideline range, was not unreasonable.

Medina: Kickback is not in and of itself Fraud

In U.S. v. Medina, No. 05-14864 (May 11, 2007), the Court, on an appeal of convictions of Medicare Health Care Fraud and money laundering, reversed all convictions of one defendant, reserved some convictions of co-defendants, and vacated the sentence for incorrect loss calculations.
The scheme involved bringing patients to the defendants’ pharmacies in exchange for illegal kickbacks for patients and doctors. No evidence indicated, however, that Medicare was billed for unnecessary medical procedures. A confidential informant met with the defendants to exchange, for a fee, their checks for cash, but admitted on cross-examination that one defendant, Medina, a secretary, was always sent out of the room to avoid her hearing them talk about the kickback scheme.
As to the secretary, the Court found the evidence was insufficient to sustain her convictions. The Court noted that the fraud offense was based on making a knowingly false statement to Medicare. Here, the false statement would have been the pharmacies’ written promise to abide by Medicare’s regulations, including its prohibition on kickbacks. However, no evidence established the secretary’s awareness of the kickbacks.
As to the other defendants, none of the counts of convictions that predated the statement to Medicare could be sustained. The kickbacks, in and of themselves did not constitute fraud, and those which occurred before the statements were not the subject of a false statement. The Court rejected the government’s reliance on other evidence as proof of fraud, including its argument that it did not call certain witnesses to establish an element of the offense because they would not make "ideal witnesses." "The government cannot ignore [its] burden [of proof] simply because the witnesses who can establish the required elements are less than ideal."
The Court also vacated the money laundering counts which related to the fraud counts it had set aside, since money laundering involves the proceeds of activity known by the defendants to be illegal. The Court, however, upheld money laundering convictions as to the principal of the crime, finding that the acts occurred after she signed documents certifying (falsely) that she would follow Medicare regulations.
As to the general conspiracy charge, under 18 U.S.C. § 371, the Court upheld the convictions of two defendants, but again vacated the secretary’s conviction, finding that her lack of awareness of the kickback conspiracy, and of the conspiracy’s other objectives, left insufficient evidence to convict.
Turning to sentencing, the Court noted that the district court failed to make a sufficient loss calculation, and instead sentenced the defendants for the entire amount Medicare was billed in the period, without explanation. However, in the absence of evidence of Medicare’s payment of unnecessary medical claims, or that the patient kickback scheme resulted in any actual loss to Medicare, this calculation was inadequate. The Court therefore remanded the case for resentencing.

Edouard: No Erroneous Failure to Appoint Interpreter

In U.S. v. Edouard, No. 05-15808 (May 11, 2007), the Court affirmed the convictions and sentences of defendants involved in large-scale cocaine-trafficking between Haiti and the U.S.
The Court rejected Edouard’s argument that he was unfairly denied the assistance of a Haitian Creole interpreter during trial. The Court cited portions of the transcript which undercut Edouard’s claim of a language barrier.
The Court also rejected the Batson challenge to the exclusion of certain jurors. The Court faulted the district court for summarily overruling Edouard’s Batson objections, but ultimately found no error in view of the prosecution’s forthcoming statement of his reasons for exercising his strikes.
The Court found no Rule 404(b) violation in the admission of evidence of drug-trafficking in years prior to the charged conspiracy. The Court found that this evidence properly established the defendant’s "intent." The Court also found no error in the admission of evidence that the defendant had threatened to kill a person if money was not returned to him. The Court found that this threat was an integral part of the money laundering charge.
The Court further rejected the argument that the case involved not a single, but multiple conspiracies. The Court noted the common goal of the conspiracy (drug-trafficking) and the overlap of participants.
The Court found sufficient evidence to sustain several specific money laundering counts, noting that separate transactions were part of the scheme, and each gave rise to a separate count.
Finally, the Court rejected the argument that the sentencing should have been postponed after new counsel was hired to represent Edouard, noting that the defendant waited two weeks after new counsel made an appearance before seeking a continuance. Further, this counsel’s untimely objections to the PSI were properly not considered, because he waited 20 days after substitution of counsel before filing them late.

Jordan: Actual Innocence not basis for habeas relief

In Jordan v. Dep’t of Corrections, No. 05-14736 (May 14, 2007), the Court held that the district court properly dismissed a second and successive habeas petition. The Florida state inmate’s petition claimed that his confession was involuntary, and asserted a claim of "actual innocence" based on newly obtained evidence. As to the involuntary confession claim, the Court found that it was not based on newly discovered evidence, and therefore did not meet the requirements of a second and successive habeas petition. As to the actual innocence claim, the Court found that this claim had not been preserved in the appeal briefs, and in any event, precedent forbade granting relief based upon a claim of actual innocence.