Eleventh Circuit Court of Appeals - Published Opinions

Friday, August 28, 2009

McIntosh: Second Indictment must be dismissed after guilty plea to first indictment

In U.S. v. McIntosh, No. 08-15549 (Aug. 27, 2009), the Court held that Double Jeopardy barred the government from indicting a defendant for a second time, after the defendant pled guilty to a first indictment charging the same offenses, but on different (erroneous) dates.
A first indictment charged drug and firearm offenses occurring in February 2007. The defendant pled guilty. However, prior to sentencing, the government informed the court that the date of the indictment was wrong: the offenses occurred in November 2005. The government obtained a second indictment, and moved to dismiss the first one.
The Court noted that, for Double Jeopardy purposes, jeopardy attaches when a court accepts a guilty plea. It is a conviction. Thus, here, jeopardy attached. The Court rejected the argument that the case was "exceptional," pointing out that one purpose of Double Jeopardy is to protect against "prosecutorial negligence." The Court disagreed with the district court that the dismissal of the first indictment, without prejudice, "effectively withdrew" the plea. The dismissal did not vacate the plea, or the conviction. Moreover, the defect in the indictment was not "fatal" and therefore did not justify a second indictment.
The Court also rejected the government’s argument that McIntosh had implicitly consented to the second indictment, pointing out that defense counsel had stated that he was not acquiescing in a second indictment.
The Court remanded the case with instructions to vacate the second indictment.


In U.S. v. Gomez, No. 09-11031 (Aug. 28, 2009), the Court held that it was not harmless error for the trial judge to fail to instruct the jury – contrary to the Supreme Court’s recent holding in Flores-Figueroa v. U.S., 129 S.Ct. 1886 (2009) – that the government had to show that the defendant knew that the means of identification that was the subject of the identity theft charged under 18 U.S.C. §1028A(a)(1) "belonged to another person."
The Court noted defense argument that Gomez used a false identification document in order to get a job, to fulfill "the American dream," and not to "live off of somebody else . . . or steal." The Court noted that the evidence supported this defense; the jury could have found that the government failed to prove that Gomez knew that the identification documents belonged to another person. The error therefore was not harmless. The Court vacated the conviction and remanded for further proceedings.

Monday, August 24, 2009

Felts: No Plain Error in not instructing jury in the conjunctive

In U.S. v. Felts, No. 08-11450 (Aug. 21, 2009), the Court held that there was no plain error in a money laundering jury instruction.
The money laundering statute at issue made it unlawful to transport funds either to promote specified unlawful activity, or to conceal the nature of the proceeds of the specified unlawful activity. The jury instruction in Felts charged the violation of the statute in the conjunctive, that is, the jury was instructed in a single paragraph that either intent to promote or intent to conceal would be valid bases to convict. Felts argued that the jury should have been instructed that it had to agree as to which mental state existed.
Rejecting the argument, the Court noted that the distinction between the two mental states was "minimal." Thus, there was little, if any, risk of unfairness in not treating each mental state – intent to conceal vs. intent to promote – as a separate violation.

Wednesday, August 19, 2009

Maxwell: Convictions for MIA Contract Fraud Affirmed

In U.S. v. Maxwell, No. 07-11301 (Aug. 19, 2009), the Court affirmed convictions and sentences arising out of a fraudulent scheme to obtain construction contracts for work at Miami International Airport set aside for socially and economically disadvantaged companies.
The Court rejected the argument that the district court violated the Sixth Amendment when it limited defense cross-examination of a government witness. The Court found that the examination exposed facts that were more than sufficient to allow the defense to argue that the witnesses were biased. Further, the topic on which the defense sought to cross-examine a witness was "of no palpable impeachment value." In addition, certain questions "were beyond the scope" of direct examination.
The Court rejected challenges to the sufficiency of the evidence, finding "ample" evidence that Maxwell made material misrepresentations. The Court found that the jury could conclude that the supposed subcontractor performed no commercially useful function.
The Court found no error in refusing to give the jury instructions Maxwell proposed. These instructions would have addressed the ambiguity of the regulations at issue. The Court stated that the "good faith defense" given by the district court were sufficient to allow Maxwell to argue in closing argument that he did not have the requisite criminal intent.
Turning to sentencing, the Court rejected Maxwell’s challenge to the loss calculation. The Court found that the district court actually understated the amount of the loss, because it relied on the 6% profit on the government contracts, not the entire value of the diverted contracts of over $7 million. However, because the government did not cross-appeal this issue, the Court did not remand for resentencing.

Tuesday, August 18, 2009

Bonilla: Double Jeopardy Violation in Identity Theft Charges

In U.S. v. Bonilla, No. 08-112127 (Aug. 18, 2009), the Court – on plain error review after a guilty plea – reversed identify theft convictions, because the indictment was multiplicitous and violative of Double Jeopardy.
The defendant was convicted under both 18 U.S.C. § 1208(a)(7) and 1028(a)(1), which address access device fraud. The Court found that both of the statutes contain "identical" elements. "This is a clear example of one act violating two distinct statutory provisions and therefore violating the protection against double jeopardy."
Turning to the factual record at the defendant’s plea colloquy, the Court found that (without the need to depend on facts outside the record, which the guilty plea would have waived), the same factual information supported both charged offenses.
Bonilla’s time in prison, however, will remain the same. His sentence on the duplicative counts ran concurrent to sentence on the remaining counts.
The Court found no duplicativeness violative of Double Jeopardy in Bonilla’s conviction under § 1028A, because this statute authorized cumulative punishment, by providing for an additional two-year penalty in addition to any term of imprisonment for the underlying offense.
The Court rejected Bonilla’s challenge to the district court’s decision to impose consecutive sentences, noting that the district court has discretion to do so under the Guidelines, and here noted the seriousness of Bonilla’s crimes.

Kaley: Defendants entitled to hearing on seizure of assets pretrial

In U.S. v. Kaley, No. 07-13010 (Aug. 18, 2009), the Court held that the district court should have held an evidentiary hearing to determine whether to lift an injunction preventing the defendants from encumbering their home in order to raise money to pay for defense counsel. Citing U.S. v. Bissell, 866 F.2d 1343 (11th Cir. 1989), the Court held that the district court should have held a hearing to weigh the suffering of the defendants from the denial of counsel of choice against the government’s interest in recovering the assets seized.

Monday, August 17, 2009

Ponce: Georgia Commercial Vehicle Inspection Is Valid

In U.S. v. Ponce-Aldona, No. 08-13144 (Aug. 12, 2009), the Court rejected a Fourth Amendment challenge to a "safety checkpoint" stop of the defendant’s truck.
Georgia police set up a safety checkpoint at an exit to I-85 northbound, to pull over commercial vehicles for inspection. Officers spotted the defendant driving a truck who appeared to notice the officers and then bypassed the exit. The officers stopped and searched the truck and found cocaine. Ponce challenged the search under the Fourth Amendment.
The Court held that the search fell within the administrative search exception to the warrant requirement of the Fourth Amendment. The Court explained that an administrative inspection of a closely regulated business is a well-established exception to the warrant requirement for a search. The Court found that the Georgia inspection program adequately advised that searches would be made on a regular basis and were not merely discretionary. The regulations provided that Department of Motor Vehicle enforcement officers were authorized to stop and inspect commercial motor vehicles. Further, the discretion of the inspecting officers was adequately limited because only DMVS officers could inspect, and inspections are limited to public highways, searches are limited to the cargo area and documents of commercial vehicles. Further, time and place restrictions are not feasible because trucks could easily avoid fixed checkpoints. The Court noted that for this inspection, all commercial vehicles that passed by the checkpoint without stopping were more likely than not going to be pulled over and inspected.

Tuesday, August 11, 2009

Windom: Counsel not ineffective in death penalty phase

In Windom v. Sec. Dep’t of Corrections, No. 07-15876 (Aug. 10, 2009), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three murders in 1992.
The Court found that even assuming Windom’s counsel’s limited investigation into Wiondom’s background and mental health constituted deficient performance, Windom was not prejudiced thereby. The evidence of Windom’s background and mental health would not have affected the outcome, because of overwhelming evidence of premeditation, and the relative weakness of the conclusions of mental health experts.
The Court also rejected an ineffective challenge to counsel’s opening and closing arguments. Counsel argued for the existence of the statutory mitigating circumstances of extreme mental or emotional disturbance. Counsel’s candor about the crimes did not prejudice Windom, in light of the strength of the State’s case for death.

Thursday, August 06, 2009

Bobb: No Double Jeopardy Violation on Receiving and Posssing Child Porn

In U.S. v. Bobb, No. 07-13252 (Aug. 6, 2009), the Court rejected a Double Jeopardy challenge to convictions for receiving and possessing child pornography.
The Court agreed with Bobb that in the abstract it could violate Double Jeopardy to prosecute a defendant for both "receiving" and "possessing" child pornography, because this would be multiple punishment for the same offense. The Court noted that it is impossible to receive a thing without also possessing it. The Court found no intent of Congress to punish the same conduct twice, under separate statutes.
However, Ball was charged with receiving child pornography on a separate date from the date on which he was charged with possessing additional child pornography. Thus, the indictment charged two separate and distinct offenses. Thus, the Double Jeopardy challenge ultimately fell short.