Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, September 23, 2009

Faris: Proposed Guideline Amendment does not affect binding Circuit precedent

In U.S. v. Faris, No. 08-16336 (Sept. 23, 2009), the Court upheld the conviction and sentence of a defendant convicted of possession of child pornography, and enticing a minor to engage in sexual activity.
The Court rejected Faris’ argument that his prosecution violated the Commerce Clause. The Court pointed out that Faris used the internet, and the internet is an instrumentality of interstate commerce.
The Court also rejected Faris’ argument that the Necessary and Proper Clause did not confer authority to prosecute him. The Court noted that Congress has "substantial leeway" in how to regulate purely intrastate activity that it deems can, in the aggregate, frustrate the broader regulation of interstate economic activity.
Turning to sentencing, the Court rejected Faris’ argument that his sentence should not have been enhanced for having "influenced" a "minor," because the "minor" in his case was a law enforcement officer. The Court recognized that the applicable Guideline is scheduled to be amended on November 1, 2009, to provide that the enhancement does not apply in a case where the only minor is a law enforcement officer. However, the precedent of the Eleventh Circuit, which is contrary to this amendment, remains binding, and the Guideline amendment has no force until adopted.

Monday, September 21, 2009

Rhode: No ineffective investigation of mitigation

In Rhode v. Hall, No. 08-16960 (Sept. 17, 2009), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders.
The Court rejected all of Rhode’s ineffective assistance of counsel claims. The Court found that counsel adequately investigated mitigation evidence, having, inter alia, traveled out of state to interview ten possible mitigation witnesses.
The Court also rejected a challenge to the presentation of mitigation evidence, pointing out that defense counsel called nine witnesses during the penalty phase. Counsel could not be faulted for not calling witnesses that counsel viewed as cumulative, or for presenting evidence that the jury might have viewed as aggravating, not mitigating.
The Court distinguished cases where counsel had failed to investigate voluminous mitigating evidence, or failed to examine the files that the prosecutor had warned would be used at trial.

Wednesday, September 16, 2009

Segarra: 924(c) means consecutive sentences in all cases

In U.S. v. Segarra, No. 08-17181 (Sept. 15, 2009), the Court, joining the majority of Circuits to have addressed this question of statutory interpretation, held that 18 U.S.C. § 924(c) mandates a consecutive sentence for firearm possession offense in furtherance of a drug trafficking crime, even when the statutory mandatory minimum for the drug trafficking crime exceeds the mandatory minimum for the firearms offense. The Court rejected the Second Circuit’s contrary reading of the statute.
Given the Court’s interpretation of § 924(c), Segarra’s waiver of his right of appeal did not give him any basis to appeal his sentence. The Court therefore dismissed his appeal.

Friday, September 11, 2009

Jordan: Rejecting Government Cross-Appeal of Probation Sentence

In U.S. v. Jordan, No. 06-12563 (Sept. 11, 2009), the Court affirmed convictions and sentences arising out of an Alabama Sheriff’s unlawful use of the National Crime Information Center database to obtain the criminal records of those who voted in a Sheriff’s reelection race (which the Sheriff lost).
The Court rejected the argument that the indictment did not give the defendant adequate notice of the charges. The Court rejected the argument that the indictment failed to allege a crime, pointing out that it alleged that the NCIC was used for non-law enforcement purposes, in violation of 18 U.S.C. § 641.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Jordan, as a lawyer acting for Sheriff Woodward, obtained NCIC printouts, and used some of the information they disclosed.
The Court found no error in the district court’s refusal to give a "good faith" defense jury instruction, pointing that the trial court’s instruction regarding the meaning of "knowingly" and "willfully" adequately addressed the good faith defense concept. The Court also found no error in refusing the give the defendant’s "confused" instruction regarding the attorney-client privilege.
The Court also rejected the government’s cross-appeal of the sentences of six month probation. The government argued that the sentencing court erred because it "did not deem the offense to be serious." The Court found that the sentencing court’s findings of fact were not clearly erroneous. Moreover, the sentencing court gave "appropriate consideration" to the § 3553(a) factors.

Thursday, September 10, 2009

Garcia-Bercovich: Shrink wrapped boxes part of same package

In U.S. v. Garcia-Bercovich, No. 08-12061 (Sept. 10, 2009), the Court affirmed convictions for marijuana trafficking.
The Court rejected the defendant’s challenge to the sufficiency of the evidence. Garcia-Bercovich traveled across the United States to pick up packages for an individual he barely knew. He had previously been convicted of importation of marijuana. One could infer that Garcia-Bercovich deliberately avoided learning the contents of the items he picked up so as to have this defense in the event of prosecution. Lastly, the defendant’s attempt to flee was evidence of guilt.
The Court also found no Fourth Amendment violation in the search of the boxes in which marijuana was found. Marijuana was found by a private search in a single box which came shrink wrapped on a single pallet with other boxes. The other boxes were then opened by police without a warrant. The Court rejected the argument that the search of the other boxes required a warrant, finding that all the boxes were part of the same "package" because they were shrink wrapped together on the same pallet.

Thursday, September 03, 2009

Johnson: State Probation does not Suspend Federal Supervised Release

In U.S. v. Johnson, No. 09-10351 (Sept. 2, 2009), the Court held that time spent serving a State sentence on probation, while under a federal sentence of supervised release, does toll the running of the period of supervised release. The fact that the State sentence of imprisonment was suspended so that Johnson could serve it on probation did not affect the tolling analysis. Hence, Johnson’s alleged violations of his conditions of federal supervised release, which occurred, when one excludes the time spent on probation on a State sentence, within the federal supervised release three-year term, could be the basis for revocation of supervised release. The Court therefore affirmed the district court’s revocation of Johnson’s supervised release, based on violations that occurred within the three-year period.