In U.S. v. Mangaroo, No. 06-14766 (Oct. 29, 2007), on a government appeal, the Court vacated the sentences of probation imposed on three women college roommates who pled guilty to robbery and firearm offenses in which they helped others "case" places in advance of robberies.
The Court noted that at the conclusion of sentencing, the government only made generalized objections, such as "the government objects to the sentence." This did not suffice to preserve for appeal the error in the sentences, namely the fact that the district court imposed sentences of probation when the statute for the offense of conviction, 18 U.S.C. § 924(c), expressly excludes probation as a sentencing option. However, because this error was plain from the language of the statute, the error constituted "plain error," and grounds, therefore, for vacating the sentences.
The Court pointed out that at the original sentencing, the district court did not cite any assistance-related factors to justify its downward departures. The Court agreed with the government that, at resentencing, the downward departures based on the defendants’ cooperation must be limited to the nature of the "substantial assistance" they provided.
Wednesday, October 31, 2007
Monday, October 29, 2007
Moore: Rule 29 Motion in VA theft
In U.S. v. Moore, No. 07-10237 (Oct. 26, 2007), the Court reversed the district court’s denial of a Rule 29 motion for judgment of acquittal for defendants convicted by a jury of theft of government property in violation of 18 U.S.C. § 641.
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf
A widow of a war veteran was receiving a monthly direct deposit benefit payment from the Veterans Administration, to an account the widow shared with her son. After she died, the direct deposit continued to be made to the account, now shared by the son with his wife. The son and his wife did not notify the Veterans Administration of the mother’s death. Years later, the Veterans Administration discovered the continued payments, and the son and his wife were prosecuted for theft of the benefits that continued to be deposited to their account.
The Court noted that when a defendant makes a Rule 29 motion that the trial court reserves judgment on until the conclusion of the trial, the evidence to be considered is frozen at the time the government rests. Thus, the defendants’ testimony, which the jury evidently did not believe, and which would be counted against them on a standard sufficiency of the evidence review, would not be part of the Rule 29 analysis.
The defendants still faced the challenge of overcoming the drawing of inferences in the government’s favor – but in this case, met the challenge. The Court found that the government presented no evidence on the question whether the defendants knew that they were not entitled to continue to receive the mother’s monthly benefit. The district court erred therefore in denying the Rule 29 motion.http://www.ca11.uscourts.gov/opinions/ops/200710237.pdf
Friday, October 26, 2007
Robison: CWA Convictions Reversed
In U.S. v. Robison, No. 05-17019 (Oct. 24, 2007), the Court reversed the convictions of defendants found guilty of Clean Water Act violations, and also reversed a conviction for giving a false statement.
The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v. U.S., 126 S.Ct. 2208 (2006). Though recognizing some confusion in the law regarding Rapanos’ definition of "navigable waters," the Court held that it involved a "significant nexus" between the waters affected by a defendant’s pollution and waters that are in fact "navigable." The instruction failed to convey this concept, and this error was not harmless, because there was no evidence that the creek into which the defendants dumped pollutants caused harm to the river into which the creek flowed.
Turning to the false statement conviction, a specific intent crime, the Court noted that the statement in question merely certified that reports had been prepared under the person’s supervision. This representation was true, and it did not establish that the person making the statement knew that the reports were false, or vouched for the accuracy of the reports. Hence the evidence was insufficient to sustain the false statement conviction.
The Court held that the definition of "navigable waters" under the CWA in the jury instructions was erroneous under Rapanos v. U.S., 126 S.Ct. 2208 (2006). Though recognizing some confusion in the law regarding Rapanos’ definition of "navigable waters," the Court held that it involved a "significant nexus" between the waters affected by a defendant’s pollution and waters that are in fact "navigable." The instruction failed to convey this concept, and this error was not harmless, because there was no evidence that the creek into which the defendants dumped pollutants caused harm to the river into which the creek flowed.
Turning to the false statement conviction, a specific intent crime, the Court noted that the statement in question merely certified that reports had been prepared under the person’s supervision. This representation was true, and it did not establish that the person making the statement knew that the reports were false, or vouched for the accuracy of the reports. Hence the evidence was insufficient to sustain the false statement conviction.
Thursday, October 25, 2007
Brown: Union officials convictions upheld
In U.S. v. Brown, No. 05-11137 (Oct. 25, 2007), the Court affirmed the convictions and sentences of defendants convicted of fraud involving union moneys, in violation of RICO and Taft-Hartley Act laws. The defendants were the executive director of a union and his assistant, who received payments from firms who employed potential union members.
The Court rejected the argument that there was insufficient evidence to support the Taft-Hartley counts. The defendants argued that employees of a firm that made payments to them belonged to another union, and therefore could not be considered persons who might be "admitted to membership" in defendants’ firm, a requirement for Taft-Hartley liability. But the Court found that because these employees could have been solicited to join the defendants’ union despite this roadblock.
Declining to follow a Second Circuit precedent, the Court found that despite the infirmity of certain predicate acts of RICO conspiracy, the jury’s general verdict was valid, because the "continuity: element could be inferred from the 2 valid predicate acts which the jury found. This continuity was provided by the fraudulent vouchers for reimbursement that were submitted over a six year period.
The Court also sustained the RICO conspiracy conviction, finding that evidence of Brown’s concealment of his receipt of funds showed the agreement on the overall objective of the conspiracy.
The Court further sustained the conviction for depriving the union of "honest services." The Court found that the payments Brown received, payments he concealed from the union, supported this count of conviction.
The Court found that, even assuming the district court erroneously failed to instruct the jury that the existence of employees, not supervisors, in a firm from which the defendant receives prohibited payments, were one element the Taft-Hartley violations, the error was harmless – the jury would still have convicted.
The Court rejected the argument that Brown should have been granted a severance from his assistant. Brown claimed that, had they been tried separately, he would have called his assistant as an exculpatory witness. The Court found no "compelling prejudice" in the denial of the severance.
Turning to the assistant’s appeal, the Court rejected the argument that a RICO "enterprise" can also be the victim of the RICO offense. The "enterprise" need not be the instrument "through which" the violation occurs. It can be the victim.
The Court found "ample evidence" that the assistant was aware of the overall purpose of the conspiracy, noting her "extraordinary control" over the union books, and her ability to enrich herself.
The Court upheld a jury instruction which stated that a "lower level" participant in an enterprise could be held criminally responsible for a RICO offense, finding it in accord with Circuit precedent.
Finally, turning to sentencing, the Court upheld an order of forfeiture in excess of $500,000. The Court upheld finding the assistant jointly liable for the total amount of the loss. Though this amount was not reasonably foreseeable, it was valid. The Court declined to follow contrary holdings in other circuits, noting the "punitive" character of forfeiture. The Court again cited the punitive character of forfeitures in declining to credit the assistant for moneys that she had returned to the union. The Court also rejected the argument that the forfeiture was unconstitutionally excessive.http://www.ca11.uscourts.gov/opinions/ops/200511137.pdf
The Court rejected the argument that there was insufficient evidence to support the Taft-Hartley counts. The defendants argued that employees of a firm that made payments to them belonged to another union, and therefore could not be considered persons who might be "admitted to membership" in defendants’ firm, a requirement for Taft-Hartley liability. But the Court found that because these employees could have been solicited to join the defendants’ union despite this roadblock.
Declining to follow a Second Circuit precedent, the Court found that despite the infirmity of certain predicate acts of RICO conspiracy, the jury’s general verdict was valid, because the "continuity: element could be inferred from the 2 valid predicate acts which the jury found. This continuity was provided by the fraudulent vouchers for reimbursement that were submitted over a six year period.
The Court also sustained the RICO conspiracy conviction, finding that evidence of Brown’s concealment of his receipt of funds showed the agreement on the overall objective of the conspiracy.
The Court further sustained the conviction for depriving the union of "honest services." The Court found that the payments Brown received, payments he concealed from the union, supported this count of conviction.
The Court found that, even assuming the district court erroneously failed to instruct the jury that the existence of employees, not supervisors, in a firm from which the defendant receives prohibited payments, were one element the Taft-Hartley violations, the error was harmless – the jury would still have convicted.
The Court rejected the argument that Brown should have been granted a severance from his assistant. Brown claimed that, had they been tried separately, he would have called his assistant as an exculpatory witness. The Court found no "compelling prejudice" in the denial of the severance.
Turning to the assistant’s appeal, the Court rejected the argument that a RICO "enterprise" can also be the victim of the RICO offense. The "enterprise" need not be the instrument "through which" the violation occurs. It can be the victim.
The Court found "ample evidence" that the assistant was aware of the overall purpose of the conspiracy, noting her "extraordinary control" over the union books, and her ability to enrich herself.
The Court upheld a jury instruction which stated that a "lower level" participant in an enterprise could be held criminally responsible for a RICO offense, finding it in accord with Circuit precedent.
Finally, turning to sentencing, the Court upheld an order of forfeiture in excess of $500,000. The Court upheld finding the assistant jointly liable for the total amount of the loss. Though this amount was not reasonably foreseeable, it was valid. The Court declined to follow contrary holdings in other circuits, noting the "punitive" character of forfeiture. The Court again cited the punitive character of forfeitures in declining to credit the assistant for moneys that she had returned to the union. The Court also rejected the argument that the forfeiture was unconstitutionally excessive.http://www.ca11.uscourts.gov/opinions/ops/200511137.pdf
Tuesday, October 23, 2007
Jones: Jury Instruction to Continue Deliberating Impermissibly Coercive
In U.S. v. Jones, No. 06-15203 (Oct. 22, 2007), the Court reversed a conviction, finding plain error when a district court instructed a deadlocked jury: "We will do this [deliberate] until you reach a verdict." The district court also told the jury, after substituting an alternate juror for one who was sick: "There’s no need of sending any notes that you can’t agree, because you are going to stay here for a long time." Citing Jenkins v. United States, 380 U.S. 445 (1965), the Court held that the instructions were "impermissibly coercive."
The Court noted that there was sufficient evidence to convict, and therefore remanded the case for a new trial.
The Court noted that there was sufficient evidence to convict, and therefore remanded the case for a new trial.
Thursday, October 04, 2007
Delancy: Consensual search not fruit of poisonous tree
In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant’s girlfriend’s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual.
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."
Tuesday, October 02, 2007
Khanani: "Proceeds" are not proceeds of the labor
In U.S. v. Khanani, No. 05-11689 (Oct. 2, 2007), the Court affirmed the judgments of defendants convicted of encouraging unauthorized aliens to reside in the United States, and of harboring these aliens. The Court also affirmed the district court’s entry of a judgment of acquittal on the money laundering counts. The case arose out of the defendant’s employment of illegal aliens in their jeans retail stores.
The Court found no error in the district court’s refusal to instruct the jury that "mere employment" of illegal aliens would not suffice to establish guilt of harboring illegal aliens. The Court found that the instructions that were given were already adequate to describe the offense, and that no further instruction was required.
The Court also rejected the argument that the search of the computers at the defendants businesses violated the Fourth Amendment. The Court noted that while the search warrant affidavit did not indicate that computer-generated forms were involved, a "common sense" interpretation of the affidavit gave rise to this inference.
The Court also found no abuse of discretion in denying a motion for a mistrial based on a juror’s statement that a person resembling the defendant had "locked eyes" with her and felt a "presence of danger." The Court noted that the district court investigated the matter and found no prejudice to the defendant.
The Court held that it was not error to admit, on the government’s cross-examination, a co-defendant’s testimony that the defendant's involvement in the offense "would not surprise him" . The Court noted that this question was relevant in light of the co-defendant’s direct testimony, and was not given for the truth of the matter but for impeachment purposes. Further, counsel had not sought an instruction limiting the statement to being admissible for impeachment purposes, in accordance with FRE 105, and thus waived this issue.
Finally, the Court, ruling against the government’s appeal, rejected the argument that, for purposes of determining whether "proceeds" of specified unlawful activity were laundered, the cost savings to the defendants from using illegal aliens in their retail jean sales could be considered "proceeds." The Court stated that it is "decidedly unnatural to say that the moneys one has received from the sale of a good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor used to produce the goods."
http://www.ca11.uscourts.gov/opinions/ops/200511689.pdf
The Court found no error in the district court’s refusal to instruct the jury that "mere employment" of illegal aliens would not suffice to establish guilt of harboring illegal aliens. The Court found that the instructions that were given were already adequate to describe the offense, and that no further instruction was required.
The Court also rejected the argument that the search of the computers at the defendants businesses violated the Fourth Amendment. The Court noted that while the search warrant affidavit did not indicate that computer-generated forms were involved, a "common sense" interpretation of the affidavit gave rise to this inference.
The Court also found no abuse of discretion in denying a motion for a mistrial based on a juror’s statement that a person resembling the defendant had "locked eyes" with her and felt a "presence of danger." The Court noted that the district court investigated the matter and found no prejudice to the defendant.
The Court held that it was not error to admit, on the government’s cross-examination, a co-defendant’s testimony that the defendant's involvement in the offense "would not surprise him" . The Court noted that this question was relevant in light of the co-defendant’s direct testimony, and was not given for the truth of the matter but for impeachment purposes. Further, counsel had not sought an instruction limiting the statement to being admissible for impeachment purposes, in accordance with FRE 105, and thus waived this issue.
Finally, the Court, ruling against the government’s appeal, rejected the argument that, for purposes of determining whether "proceeds" of specified unlawful activity were laundered, the cost savings to the defendants from using illegal aliens in their retail jean sales could be considered "proceeds." The Court stated that it is "decidedly unnatural to say that the moneys one has received from the sale of a good are, not the ‘proceeds’ from the sale of a good, but ‘proceeds’ of the labor used to produce the goods."
http://www.ca11.uscourts.gov/opinions/ops/200511689.pdf
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