Day: Challenge to Georgia Parole Board Timely

In Day v. Hall, No. 06-16060 (May 29, 2008), the Court held that a Georgia inmate’s federal habeas petition should not have been dismissed as untimely, and therefore reversed the district court’s dismissal. The Court rejected the argument that the AEDPA one-year statute of limitations started to run from date Day was first denied parole. The Court noted that his challenge to the Parole Board’s failure to promulgate an eligibility requirement for parole was properly brought as the petition for mandamus in Georgia state courts. This proceeding, combined with other proceedings, was pending for 362 days – less than the one-year limitations period.

Young: Superseding Indictment Violates Speedy Trial Act

In U.S. v. Young, No. 07-13626 (May 27, 2008), the Court held that one count of conviction should have been dismissed (with or without prejudice) for violation of the Speedy Trial Act.
The government initially indicted Young on a single count for possessing an unregistered silencer. Two months later, the government filed a five-count superseding indictment, which included the original silencer count and four additional, unrelated drug counts. Prior to trial, Young moved to dismiss the silencer count on Speedy Trial grounds, because more than seventy days had passed since his original indictment.
The Court held that the silencer count should have been dismissed on Speedy Trial grounds. The Court noted that the situation where a supervising indictment is filed is analogous to the dismissal of an indictment followed by a new indictment – a situation squarely covered by the Speedy Trial Act. The Court therefore remanded the case to the district court to determine the appropriate form of dismissal of the silencer count.

Mendez: 371 requires United States to be conspiracy's target

In U.S. v. Mendez, No. 07-13433 (May 21, 2008), the Court reversed a conspiracy to defraud the United States conviction, under 18 U.S.C. § 371, because the fraud involved Florida commercial driver’s licenses, which did not defraud the "United States," as the statute requires.
The district court had held that there was sufficient federal involvement in the fraud because the federal government issued regulations for obtaining a commercial driver’s licence. Reversing, the Court said this connection was insufficient to show that the United States was the "target" of the fraud. It also did not suffice that the Florida guidebook for licenses referenced the United States regulations, since the defendant did not know of this reference.
The Court, however, upheld Mendez’ separate conviction for unlawful production of a false commercial licence, in violation of 18 U.S.C. § 1028(a)(1). The Court rejected the argument that there was an insufficient nexus with interstate commerce. The Court pointed out that Mendez intended to operate a commercial vehicle, and, even if the vehicle never left Florida, its operation in Florida sufficed to establish the minimal nexus required.

Carruth: Failure to give Defendant Right to Allocute is Plain Error

In U.S. v. Carruth, No. 07-12060 (May 22, 2008), the Court vacated a sentence for violation of supervised release because the district court failed to give the defendant an opportunity to allocute, as required by Fed. R. Crim. P. 32.1(b)(2)(E).
On plain error review, the Court cited the text of the Rule, Supreme Court precedent, and its own precedent, for the principle that a district "must personally extend to the defendant the right of allocution." The Court added that prejudice "is presumed" when a defendant is not given an opportunity to allocute and there exists the possibility of a lower sentence.

Madera: Attorney General Decides Sex Offender Retroactivity

In U.S. v. Madera, No. 07-12176 (May 23, 2008), the Court reversed the district court for failing to dismiss an indictment that charged Madera with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006.
The defendant, having been convicted of sexual abuse in New York, moved to Florida, but failed to register a sex offender. This occurred shortly after the enactment of the Walsh Act but before the Attorney General had promulgated rules governing whether previously convicted sex offenders were retroactively subject to the new law. The district court held that it had the power to determine whether the Walsh Act applied retroactively, held that it did apply retroactively and did apply to Madera. Reversing, the Court noted that the Act vested this power exclusively in the Attorney General. Because the Attorney General had not yet promulgated retroactivity rules, Madera could not be charged with having failed to register.

Young: Battery Involving Fluids is 4B1.1 crime of violence

In U.S. v. Young, No. 07-14780 (May 19, 2008), the Court held that a prior Florida state conviction for "Battery of a Child Involving Fluids" qualifies as a crime of violence for purposes of the career offender enhancement, USSG § 4B1.1. The Court noted that a "crime of violence" involves the use of "physical force." The Court noted that "physical force" is different from "violent force." The statute at issue requires the violator to cause the child to come into contact with bodily fluids by "throwing, tossing, projecting, or expelling" the fluids, that is, it requires a physical act, directed against a person, and the "minimal contact" of the impact of the fluids satisfies this requirement.

Newland: No ineffectiveness in failing to establish confession was coerced

In Newland v. Hall, No. 05-15981 (May 14, 2008), the Court affirmed the denial of habeas relief to a Georgia death row inmate.
The Court rejected the argument that defense counsel was ineffective for failing to introduce in evidence police threats to charge the defendant’s wife with aggravated assault, and murder, to establish that the defendant’s confession was coerced. The Court noted that the defendant waited a full day after hearing the threats before confessing, and, in addition, the wife could have been charged with a crime in connection with the murder.
The Court also rejected the argument that counsel was ineffective for failing to investigate Newland’s background, which would have helped him find mitigating evidence and avoid the death penalty. The Court declined to fault counsel for not uncovering evidence about the defendant’s childhood and neurological disorder, because the defendant himself opted not to have counsel pursue these matters. The Court also declined to fault counsel for failing to rely on these matters at sentencing, noting that counsel’s strategy of portraying the crime as a single aberrant episode was less problematic than relying on a history of disorders.

Williams: No Organizer Enhancement where Husband was not criminally responsible

In U.S. v. Williams, No. 06-15318 (May 16, 2008), the Court affirmed the convictions of a defendant convicted of fraud in connection with the unauthorized use of federal grant moneys to a daycare center, but reversed parts of the sentence.
Reviewing for plain error, the Court rejected Williams’ Double Jeopardy claim that her conviction for theft of federal funds was duplicative of her conviction for wire fraud. Applying the Blockburger test, the Court noted that unlike wire fraud, federal theft involves no use of interstate wires. Thus, the crimes have different elements.
The Court also rejected the argument that the seven counts of wire fraud were multiplicitous. The Court pointed out that wire fraud punishes separately each execution of a scheme, and the government was therefore justified in charging Williams for each time funds were wired into Williams’ account as a result of her fraud. The Court found no bad faith on the part of the government in making seven separate wire transactions.
The Court also rejected Williams’ challenge to the sufficiency of the evidence, noting the testimony of employees who were fired by Williams after they questioned her use of federal funds.
The Court rejected Williams’ claim that the jury instructions amended the indictment when they instructed the jury that bookkeepers could be considered accomplices in the crime. The Court found that in light of the evidence presented, this was not what the instructions meant.
Turning to the sentence, the Court reversed the district court’s imposition of a two-level "organizer" enhancement. The enhancement was based on the defendant’s supervision of her own husband’s participation in the theft. The Court noted that the husband was acquitted of theft, but pointed out that this acquittal of itself did not bar the wife’s sentence enhancement, because different standards of proof exist at trial and at sentencing. However, the Court found the evidence was insufficient to show that the husband was "criminally responsible" for theft or fraud.
The Court also reversed the imposition of an "abuse of trust" sentence enhancement. The Court noted that the abuse of trust enhancement requires the defendant to have been in a fiduciary relationship to the victim. Here no such relationship existed between Williams, her firm, and the government agency from which she received grants. The Court further noted that the base offense level for Williams’ fraud already accounted for her violation of her grant conditions.
The Court affirmed the imposition of an obstruction enhancement, based on Williams’ alteration of accounting records once she became aware of the government’s investigation.

Hendrix: Judge's Appearance of Bias not a basis for habeas relief

In U.S. v. Hendrix, No. 07-12117 (May 13, 2008), the Court denied habeas relief to a Florida death row inmate sentenced.
The Court rejected Hendrix’ challenge to the refusal of the state court judge to recuse himself. The Court noted that Hendrix bore the burden of showing that the presiding judge had considered matters not disclosed to the defendant. The Court added that the mere "appearance of bias" was insufficient to warrant habeas relief.
The Court also rejected the claim that trial counsel was ineffective for failing to call an additional mental health expert, pointing out that this expert wrote that the defendant committed a "calculated" murder, and did not suffer from a mental defect.
Finally, the Court concluded that undisclosed evidence was not "material" to Hendrix’ trial in view of the other overwhelming evidence against him.

Ferguson: Faretta Habeas Claim requires review of state trial transcript

In Ferguson v. Culliver, No. 07-13030 (May 13, 2008), the Court reversed the denial of habeas relief to an Alabama inmate.
The defendant claimed that the Alabama state trial court denied him his Faretta right to self-representation. In habeas proceedings, the State did not produce the transcripts of Ferguson’s trial, but instead relied on an appellate court decision which had affirmed the denial of Farretta relief. The Court held that the district court erred in merely relying on an appellate court decision in denying habeas relief. The district court should have reviewed the trial transcripts for its determination of this "fact-intensive" issue.

Padron: Criminal Forfeiture of Money Applies to Fraud

In U.S. v. Padron, No. 07-11228 (May 13, 2008), the Court affirmed the conviction and sentence of a defendant convicted of a mail fraud scheme arising out of a personal injury clinic that obtained money from insurance companies by submitting false claims.
The Court rejected the argument that an acquittal should have been directed because the defendant was entrapped. The Court relied on evidence that showed that Padron was predisposed to commit the fraud.
Turning to the sentence, the Court affirmed the district court’s calculation of the loss amount, pointing that the Guidelines hold a defendant accountable for "the full intended loss amount." The Court also rejected the argument that the district court lacked jurisdiction to enter a judgment of forfeiture with regard to money. The Court noted that criminal forfeiture applies in every case for which civil forfeiture is authorized, and civil forfeiture, in turn, applies to all "specified unlawful activity" – and fraud is listed as a specified unlawful activity.

Williams: Coca Cola Trade Secrets Theft Judgment Affirmed

In U.S. v. Williams, No. 07-12526 (March 20, 2008), the Court affirmed convictions and sentences imposed on two defendants who attempted to sell Coca-Cola trade secrets to Pepsi, in violation of 18 U.S.C. § 1832(a)(1), (3) and (5).
The Court rejected the argument that defense cross-examination of a cooperating prosecution witness was unduly limited, pointing out that defense counsel had already presented the jury with substantial evidence to draw a fair inference about the witness’ credibility, and that the witness’ further testimony would not have given the jury a different impression.
The Court also rejected the argument that the trial court unduly limited the closing argument when it instructed the jury that defense counsel’s explanation of "reasonable doubt" was inaccurate, when he compared the concept to a patient’s desire for a second opinion when told of the need to have both legs amputated.
The Court also found no reversible error in the district court’s use of his own open-heart surgery example to describe "reasonable doubt," pointing out that, after counsel objected, the court gave a curative instruction.
Turning to the sentences, the Court upheld the 96-month and 60-month above-Guideline sentences as reasonable. Emphasizing the deference now owed district court in weighing the § 3553(a) factors, the Court cited, without criticism, the district court’s reference to the harm that Coca-Cola would have suffered had the defendants succeeded in selling its trade secrets to a rival, and the danger to the United States economy these crimes pose.

Harris: Search of Cab Passenger Compartment Did not Violate 4th Amend.

In U.S. v. Harris, No. 07-13473 (May 8, 2008), the Court affirmed the denial of a motion to suppress a firearm found after a search of a taxi in which the defendant had been riding.
An Atlanta, Georgia, police officer saw Harris remove what appeared to be a handgun from bushes, and get into a taxi. The officer followed the cab, and pulled the cab over when the cab failed to use its turn signal when changing lanes. The officer searched Harris and found nothing on him. The officer then asked the cab driver for consent to search the cab, and found a .357 magnum under the floor mat. Harris, charged with being a felon in possession of a firearm, moved to suppress the firearm on the ground that the search violated the Fourth Amendment.
The Court noted that the officer had probable cause to stop the cab, because of the failure to use a turn signal during a lane change. The officer also had reasonable suspicion to search Harris’ person, as an investigatory Terry stop.
Turning to the search of the cab, the Court noted that Harris had an expectation of privacy in the passenger compartment, because he closed the door to the cab when he got out of the car. However, this expectation of privacy did not trump the cab driver’s consent to the search of the cab – a consent on which the officer reasonably relied, because Harris stayed silent, and "never expressed disagreement with the driver’s consent."
The Court also rejected Harris claim that his statements given to federal law enforcement officials should have been suppressed, because at the time he was represented by counsel in pending state proceedings, and his right to counsel had therefore attached – citing U.S. v. Burgest, 2008 WL 659550 (11th Cir. March 13, 2008).

Hunt: Affirming police officer's false report obstruction conviction

In U.S. v. Hunt, No. 06-16641 (May 5, 2008), the Court affirmed a conviction and sentence for making a false entry in a police report with the intent to impede an FBI investigation.
Hunt, a Prichard, Alabama police officer, was involved in an arrest where he threw the person to the ground, causing injury and permanent hearing loss. In his police report, however, Hunt stated (falsely) that he had been grabbed first by the person under arrest.
The Court rejected the argument that the statute of conviction, 18 U.S.C. § 1519, was unconstitutionally vague. Though the statute was passed as part of the Sarbanes-Oxley Act, its application need not be cabined to the corporate malfeasance at which the Act was targeted, so long as the plain language does not produce absurd results.
Citing the language of § 1519, the Court also rejected the argument that the statute contemplated only alterations of a pre-existing document, not, as here, the making of a false entry upon a document’s creation.
The Court also rejected a challenge to the sufficiency of the evidence on the question of whether Hunt intended to obstruct an FBI investigation. The Court noted a number of pieces of circumstantial evidence – including the fact that Hunt stuck to his false story more than a year after the incident – from which the jury could reasonably infer the intent element.
The Court rejected Hunt’s challenge to his sentence of five months imprisonment, followed by five months of supervised release, noting that the district court had noted, reasonably, the need to deter other police officers from filing false reports.

Edwards: Conspiracy Evidence Sufficient

In U.S. v. Edwards, No. 06-11643 (May 5, 2008), the Court affirmed fraud and money laundering convictions arising out of a Ponzi scheme involving investments in coin-operated payphones.
Edwards failed to renew his motion for judgment of acquittal at the close of all the evidence, as required by Fed. R. Crim. P. 29. Accordingly, the Court reviewed his challenge to the sufficiency of the evidence only for "a manifest miscarriage of justice." The Court held that the evidence was sufficient, noting that Edwards was aggressively courting investors with claims that his company was sound and profitable, when it was, in reality, "hemorrhaging money." Turning to the conspiracy conviction, the court noted that since conspiracies are "inevitably secret," they are "rarely established by direct evidence." The Court concluded that Edwards’ wife was not aware that what she was doing was illegal, and she therefore was not a conspirator. However, another senior manager at Edwards’ companies participated in the transfers of money, and inferences from his conduct sufficed to establish that he had conspired with Edwards to launder the fraud proceeds.
The Court rejected Edwards’ argument that victims of his fraud who were going to be called as government witnesses should have excluded from the courtroom during the trial under Fed. R. Evid. 615. The Court noted that the Crime Victims Act provides an exception to Rule 615 for victims, and the Court found no constitutional basis for invalidating this exception, and no abuse of discretion in the district court’s application of it.
The Court also found no "collusion" between the SEC and the United States Attorney’s Office in acquiring and sharing information about Edwards’ corporations. The Court further rejected an argument that the fraud jury instruction constructively amended the indictment because it expanded the mens rea for the offense.
The Court did not address Edwards’ challenges to his sentence because it vacated the sentence and remanded for resentencing: the district court failed to specify, as required, a sentence for each count of conviction.

Brown: Plea Voluntary Even If Court does not explain essential elements of the offense

In U.S. v. Brown, No. 05-16128 (April 29, 2008), the Court affirmed the conviction and 235 month sentence of a defendant convicted of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
Reviewing the issue for plain error, the Court rejected the argument that Brown’s plea was involuntary because the district court did not explain the elements of the offense. The Court noted that the omission, while "not ideal," was not plain error, since the elements of the offense were not difficult to understand from the indictment and the factual description of his conduct. The Court recognized that a less than full explanation of the elements of the offense could impair a defendant’s understanding of possible defenses, and thereby undermine the voluntariness of his plea (an understanding of possible defenses being, the Court appeared to assume, just as essential to the nature of the offense as the elements that constitute it). However, no realistic offense could have made Brown forego a plea of guilt, given their "significant weaknesses."
The Court also rejected the argument that the plea was involuntary because Brown was not told he would eventually be sentenced as a career offender. The Court decline to reach, on direct appeal, the merits of Brown’s claim that the prosecutor misled him into believing that he would not be sentenced as a career offender.
The Court also rejected an Ex Post Facto challenge to the sentencing court’s reliance on an intervening Eleventh Circuit interpretation of "crime of violence" as a basis for making Brown’s § 2422(b) conviction qualify for punishment under the harsher career offender guidelines. The Court noted that the maximum sentence set forth in the U.S. Code provides a person with sufficient notice, for Ex Post Facto purposes, as to the possible punishment, and intervening caselaw interpreting the Guidelines is therefore "immaterial" to the analysis.
The Court further rejected the argument that the sentencing court violated his constitutional rights when it relied on Ohio docket sheets for the purpose of determining the nature of a prior conviction. The Court noted that the rule limiting the types of information a court can consider to determine the nature of prior convictions is not constitutional. Further, the docket sheets here were not unclear as to the nature of Brown’s prior convictions.
Turning the reasonableness of the sentence, the Court found that the district court’s failure to discuss mitigation evidence did not mean if failed to consider this evidence. The Court found the within-Guideline sentence "reasonable." Finally, the Court rejected the argument that "pervasive bias" infected the sentencing court’s sentencing.