Al-Arian: Promise not to Subpoena Must be Explicit in Plea Agreement

In U.S. v. Al-Arian, No. 06-16008 (Jan. 25, 2008), the Court held that when a plea agreement contains no agreement providing that a defendant is immune from a future grand jury subpoena, the plea agreement does not prevent the government from subpoenaing the defendant to testify before a grand jury.
The Court first addressed whether the appeal had become moot, because the district court judgment which had held Al-Arian in contempt for failure to comply with the subpoena, and pursuant to which he had been sentenced, had since been vacated. The Court noted that any time Al-Arian had served for the contempt would be credited toward the sentence he was serving on the guilty plea if the Court held that the district court erred by holding him in contempt. Hence the case was not moot.
The Court also held that it had subject matter jurisdiction. The Court held that a § 2255 motion can be used to enforce promises made in a plea agreement.
Al-Arian’s plea agreement contained no terms regarding whether he agreed to cooperate with the government in the future, or whether he could be required to do so. Al-Arian noted that the government agreed to omit the standard cooperation provision from the plea agreement, and argued that this removal of language in effect immunized him from having to give any future testimony. The Court rejected this argument. Looking only to the language of the plea agreement itself, which stated that no other promises were made other than those contained therein, the Court held that the plea agreement did not prevent the government from issuing a subpoena.

Masferrer: Bank CEO fraud conviction affirmed

In U.S. v. Masferrer, No. 06-14223 (Jan. 22, 2008), the Court affirmed the conviction and sentence of a bank CEO convicted of bank and securities fraud. The fraud arose out of Masferrer’s attempt to conceal bad bank investments in Russian assets.
The Court rejected the challenge to the technical violation of the recusal rules when the case was directly reassigned to another judge. The Court noted the failure to show any potential bias.
The Court also rejected the argument that evidence of the subsequent (higher) value of the assets – subsequent to the fraud – should have been admitted in Masferrer’s defense. The Court noted that the relevant time period was Masferrer’s belief and intent at the time of the fraud, not afterward.
Turning to sentencing, the Court rejected Masferrer’s challenge to the use of 2001 Guidelines, pointing out that these Guidelines predated the completion of the conspiracy and therefore presented no Ex Post Facto issue. The Court also rejected Masferrer’s challenge to the calculation of a loss between $20 and $40 million. The Court rejected the argument that $ 22 million should not have been included as a loss to the bank, because they represented Russian assets that were worthless before the fraud occurred, and the bank would have suffered that unrealized loss, and, in fact, did not do so as a result of his fraudulent conduct. "Masferrer may not have caused the Russian assets to decline in value, but his criminal activity did cause them to be sold when they were in fact worthless, and consequently, caused the $22 million to be realized by the bank."

Flint: Shelton Not Extended

In Flint v. Jordan, No. 06-11897 (Jan. 22, 2008), the Court held that a § 2255 petition was untimely, even though the prior state conviction which the defendant challenged had been obtained without the assistance of counsel. The Court noted that the Supreme Court’s decision in Alabama v. Shelton, 535 U.S. 654 (2002) held that a "suspended sentence" that may end up in the deprivation of a person’s liberty may not be imposed if the defendant does not receive the assistance of counsel. Here, Flint challenged a conviction which resulted in a sentence of probation, not one which resulted in a suspended sentence. Thus, Flint was asking for an "extension" of Shelton, not a direct application of it – and he could not therefore claim that Shelton was retroactively applicable, and avoid the AEDPA bar on his untimely § 2255 motion.

Johnson: State extension of time does not create federal equitable tolling

In Johnson v. Fla. Dep’t of Corrections, No. 07-12115 (Jan. 17, 2008), the Court held that a Florida death row’s federal habeas petition was untimely.
The state inmate claimed that there was a delay in the appointment of his post-conviction lawyer in Florida state court. The Court held that this was not an excuse for untimeliness because prisoners in capital cases have no constitutional right to post-conviction counsel. The Court also rejected the claim that the unavailability of requested documents was an impediment to the § 2254 proceeding. Finally, the court found the "equitable tolling" doctrine inapplicable, because, even though Johnson was granted an extension of time to file for state post-conviction relief, this did not affect the timeliness of his federal petition.

Dorsey: Failure to File 5K1.1 can be unconstitutional

In U.S. v. Dorsey, No. 06-16698 (Jan. 14, 2008), in a case of first impression in the Circuit, the Court held that the government’s alleged refusal to file a once-promised § 5K1.1 motion for reduction of sentence because the defendant elected to go to trial instead of pleading guilty could constitute an "unconstitutional motive," and could therefore be the basis for a district court’s downward departure based on the defendant’s cooperation, independent of a government motion.
The Court stated that unconstitutional vindictiveness could be established either by showing facts that gave rise to a presumption of vindictiveness, or by offering evidence of a prosecutor’s actual vindictiveness. Here, the government stated that it did not file a 5K1.1 because Dorsey’s assistance was not substantial and because he started dealing drugs, again. This overcame the presumption of vindictiveness. On remand, therefore, Dorsey would have to show "actual" vindictiveness. This showing is "exceedingly difficult." Dorsey would have to present evidence that the government acted solely to punish him for exercising his legal rights, and that the reasons proffered by the government were pretextual.

Brown: Letters to parole board don't toll AEDPA

In Brown v. Barrow, No. 06-11004 (Jan. 11, 2008), the Court held that a Georgia inmate’s federal habeas petition challenging a denial of parole was time-barred by AEDPA’s one-year statute of limitations, when it was filed seven years later. The Court rejected the argument that the inmate’s letters to the parole board tolled the limitations period. The Court noted that Georgia has long provided that the sole means to attack a denial of parole was to file a writ of mandamus in state court, and Brown did not do this sufficiently early to avoid the one-year time-bar.

Snipes: No interlocutory appeal of venue

In U.S. v. Snipes, No. 08-10114 (Jan. 8, 2008), the Court dismissed a defendant’s interlocutory appeal. The defendant sought to appeal, prior to trial, the venue in his case. The Court noted that an order pertaining to venue is effectively reviewable after entry of judgment, citing U.S. v. Campa, 459 F.3d 1121 (11th Cir. 2006). Venue claims are unlike cases involving the right not to be subjected to double jeopardy and similar rights which would be lost by going to trial.

Palma: Facts Did not Support "Innocent Transitory Possession" Defense

In U.S. v. Palma, No. 06-14884 (Jan. 4, 2008), the Court rejected the defendant’s claim that, at his trial for being a felon in possession of a firearm and ammunition, the district court should have instructed the jury that a "transitory or temporary innocent possession" would be a defense to the charge. Without addressing whether this defense was valid generally, the Court noted that in Palma’s case the evidence that he entered a gun shop (with his then-girlfriend) twice, picked up the firearm, referred to it as "my gun," and requested, purchased and carried away ammunition for the firearm, did not support an "innocent transitory possession" instruction.

McBride: No Clear Error in 84-month sentence for child pornography distributor

In U.S. v. McBride, No. 06-16544 (Dec. 28, 2007) (2-1) (Dubina, J., dissenting), on a government appeal, the Court affirmed an 84-month sentence – below the 151-188 months guideline range – and a ten-year term of supervised release – below the Guideline recommended life term – for a defendant convicted of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B).
The Court rejected the government’s claim that the sentence was substantively unreasonable. The Court noted that it would reverse a sentence only if left with the definite and firm conviction that a clear error occurred in weighing the § 3553(a) factors. The Court cited the length of the 84 month sentence, as well as the district court’s reliance on the defendant’s history of abuse as a child, as bases for affirming the sentence.