Lopez: "Help" Instruction ok in Alien Smuggling case

In U.S. v. Lopez, No. 08-13605 (Dec. 22, 2009) (2-1) (Barkett, J., dissenting in part), the Court affirmed convictions for encouraging or inducing aliens to enter the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I ) and § 1324(a)(1)(A)(iv).

During deliberations, the jury asked what “encourage” meant. Over defense objection, the district court instructed that encourage means, inter alia, “to help.” Affirming this instruction, the Court noted that dictionary definitions of “encourage” included “help.” The Court rejected the argument that this interpretation would render other portions of § 1324 superfluous, because they criminalized bringing an alien into the United States, an offense which would be redundant if helping an alien enter the United States was already a crime. The Court noted that the different subsections of the statute contained different elements, with one referencing bringing an alien “at a place other than a designated port of entry,” and another refers only to the mere act of bringing an alien to the United States.

The Court rejected the argument that the supplemental jury instruction violated Fed. R. Crim. P. 30 by contradicting an earlier jury instruction. The Court noted the discretion of district courts to expand upon initial jury instructions when a jury question arises.

Finally, the Court rejected the argument that the alien smuggling statute requires a showing that the defendant knew that an alien was inadmissible at the time he boarded the boat. The Court found no such requirement in the statute.

Randolph: Juror Death Views Justified Dismissal

In Randolph v. McNeil, No. 08-12854 (Dec. 23, 2009), the Court affirmed the denial of habeas relief to a Florida death row inmate, seeing no reversible error in the District Court’s 160-page order. The Court rejected Randolph’s ineffective of assistance of counsel claim, agreeing that there was no reasonable probability that, but for his lawyer’s lack of investigation into his history would have changed the outcome. The Court also rejected the argument that a juror who answered questions inconsistently about her views on the death penalty was improperly struck from the jury, finding no clear and convincing evidence to reverse the State court finding that the juror was not credible when she said she could impose the death penalty.

Banjoko: Stow away offense does not require intent to enter U.S.

In U.S. v. Banjoko, No. 09-11402 (Dec. 23, 2009), the Court held that 18 U.S.C. §2199, which criminalizes stowing away on a vessel that enters the United States, does not require proof of the defendant’s intent to enter the United States. The statute requires only proof of intent to “obtain transportation” from a vessel without consent.

The Court also rejected Banjoko’s argument that the offense does not apply to extraterritorial conduct, relying on the plain language of the statute.

Langston: 666 convictions reversed, and affirmed.

In U.S. v. Langston, No. 08-16356 (Dec. 22, 2009), the Court reversed some convictions but affirmed others for a former Executive Director of the Alabama Fire College convicted of embezzlement.

The Court found that, for some counts, Langston was not an agent of the State of Alabama, but instead an agent of the Alabama Fire College. The Court noted that Langston served at the pleasure of the Fire College Commission, not the State of Alabama. However, the Court upheld other convictions under 18 U.S.C. § 666, finding that Langston was an agent of the State in his capacity in the Alabama Poison Center.

The Court also rejected Langston’s argument that the district court should have given an “advice of counsel” defense instruction to the jury. The Court noted the absence of evidence that Langston actually relied on any legal opinion.

The Court affirmed Langston’s 125-month sentence. The Court noted that the sentence was 43-months below the Guideline range. The Court declined to “reweigh” the factors addressed by the district court. The Court also rejected a comparison to the sentence of another offender who cooperated with the government’s investigation, noting that “there is no unwarranted disparity when a cooperating defendant pleads guilty and receives a lesser sentence than a defendant who proceeds to trial.”

White: Right to Venue Waived

In U.S. v. White, No. 08-10702 (Dec. 21, 2009), the Court held that the defendant waived any constitutional objection to the district court’s sua sponte decision to change the venue of the case from the Southern District of Alabama to the Middle District of Alabama, when he waited until after he was convicted to object to venue. .

The Court noted that an objection to a change of venue, like most rights, can be waived unless timely asserted. Here, the defendant moved pre-trial for a change of division (not of district), and his motion demonstrated his awareness of his right to a venue where the offense allegedly took place. Thus, when the district court announced before trial that it was changing the venue of the case and the defendant failed to object, he waived his right to venue. His silence was construed as an implied waived.

English: ACA supervised release revocation may exceed State maximum

In U.S. v. English, No. 09-12788 (Dec. 16, 2009), the Court held that a defendant who was convicted under the Assimilative Crimes Act (ACA), and who has served the state statutory maximum term of imprisonment, may be sentenced to further incarceration upon revocation of supervised release.

The defendant was convicted under ACA of DUI at a Naval Air Station in Florida. The Florida maximum punishment for this offense was five years’ incarceration. His sentence was five years, followed by three years of supervised release. After serving the sentence of incarceration, while on supervised release, English violated his conditions of supervised release, and after his revocation hearing the court imposed a 24-month term of incarceration. English appealed, claiming that the 24-month additional sentence exceeded the statutory five-year maximum for his Florida DUI offense.

The Court noted that sentencing courts are authorized to impose a term of supervised release under ACA, even if this term is in addition to the state statutory maximum. If a defendant violates supervised release, the sentencing court has the same authority that it has in non-ACA supervised release violations: to order additional incarceration in order to provide the deterrent mechanism intended by Congress. If a conflict exists between State and Federal law, the state law is not assimilated. Federal sentencing policy regarding supervised release overrides conflicting state provisions regarding maximum terms of incarceration.

Griffey: Federal govt need not give SORNA notice

In U.S. v. Griffey, No. 09-11696 (Dec. 15, 2009), the Court affirmed a defendant’s conviction for failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA).

Citing U.S. v. Brown, the Court rejected claims that SORNA did not apply to Griffey because Alabama had not implemented this statute at the time he failed to register as a sex offender. The Court rejected the argument that the federal government must notify a person convicted of a sex offense of his legal duty to register under SORNA. The Court pointed out that the defendant admitted that he knew of his duty to register, and this knowledge sufficed to establish a knowing violation of the statute.

Cummings: No Ineffective Assistance Where Defendant Wanted No Mitigation Presented

In Cummings v. Sec. Dep’t of Corrections, No. 09-12416 (Dec. 4, 2009), the Court reversed a grant of federal habeas corpus to a Florida inmate sentenced to death for the 1991 murder of his girlfriend. The Court concluded that counsel was not ineffective for investigate and present more mitigation evidence at the sentencing phase.

The Court pointed out that the defendant “clearly, consistently, and adamantly insisted tht he wanted no mitigation evidence presented in the penalty phase.” Counsel did not “blindly follow” the client’s wishes, but moved for a competency evaluation. Counsel investigated the defendant’s prison records. In addition, to maintain the trust that existed between the client and him, counsel ultimately decided to abide by the client’s instructions regarding the mitigating evidence, specifically his wish that he did not want his family testifying. In addition, counsel was a veteran criminal defense, giving rise to a presumption of reasonable performance. Counsel could not be faulted for not putting on evidence of Cumming’s drug use, his family’s criminal history, or his antisocial personality disorder, not only because it was inconsistent with his chosen strategy, but also because it would have had a negative effect on the jury.

Finally, even if counsel’s performance were deemed deficient, Cummings failed to show that he was prejudiced because it is clear that he would not have authorized counsel to present mitigating evidence. In addition, even had the jury heard the mitigating evidence, there is no reasonable probability that the outcome would have been different, in light of the aggravating circumstances, which included Cummings’ three prior convictions for violent felonies, and the heinous circumstances of his murder.