Sneed: Precluding Police Reports as Source for 924(e) Temporality Findings

In U.S. v. Sneed, No. 09-13195 (March 24, 2010), the Court vacated the 15-year minimum mandatory sentence imposed, based on his three prior convictions, on a defendant convicted of being a felon in possession of firearm, in violation of 18 U.S.C. § 924(e).

Section 924(e) provides for a sentence enhancement if the defendant committed three prior qualifying felonies on occasions different from one another. The district court, over Sneed’s objection, found that the three prior felonies were committed on different occasions – based only on police reports.

On appeal, the Court recognized that U.S. v. Richardson, 230 F.3d 1297 (11th Cir. 2000), held that a sentencing court could consider police reports for purposes of determining whether three prior qualifying felonies were committed on occasions different from one another. The Court determined that Richardson had effectively been abrogated by Shephard v. U.S., 544 U.S. 13 (2005).

The Court noted that Shephard precluded reliance on police reports to establish the nature of a prior conviction for purposes of the § 924(e) enhancement. The Court recognized that Shepard thus addressed the nature of prior convictions, not, as in Richardson, whether the prior convictions were temporally separate. However, noting Shephard’s Sixth Amendment concerns, the Court found “simply no distinction” between the two inquiries. It held that police reports are not Shephard-approved sources for § 924(e) findings with respect to whether offenses were committed on different occasions.

The Court vacated Sneed’s sentence and remanded for resentencing without the § 924(e) enhancement.

Ramunno: No Constructive Trust for Victim of Ponzi Scheme

In U.S. v. Ramunno, No. 09-10446 (March 17, 2010), the Court found no abuse of discretion in the district court’s denial of a fraud-victim’s request to amend an order of forfeiture against the defendant and recognize a “constructive trust” under Georgia state law in the amount of funds the victim invested. The Court pointed out that the claimant was just one of a number of victims of Ramunno’s Ponzi scheme, and that if he were granted a constructive trust to recoup his entire loss, the pool of funds available to distribute to Ramunno’s other victims through the Attorney General’s remission process would be reduced. “If the funds are distributed equitably to all victims, then each victim . . . may recover some fraction of their lost investments.”

Jennings: Workers' Comp. Fraud Conviction Upheld

In U.S. v. Jennings, No. 08-13434 (March 16, 2010), the Court affirmed convictions and sentences arising out of a scheme to sell fraudulent workers’ compensation insurance.

The Court rejected the defendant’s challenge to the reliance by the government’s expert on hearsay evidence. The Court found that the hearsay was based on “general practice in the field” regarding industry requirements, “gleaned from years of working within the industry and its professionals.”

The Court found that a witness’ testimony about parallel civil litigation was too fleeting to overturn the district court’s denial of a mistrial.

The Court declined to find that treating the receipts instead of the profits as the subject of money laundering constituted plain error under the Supreme Court’s decision in U.S. v. Santos. The fragmented opinions in that case yielded a precedent limited only to money laundering in unlicensed gambling cases – which this case was not.

The Court rejected a challenge to the substantive reasonableness of the sentence, citing the district court’s finding that the defendant “defrauded his victims of their rightful benefits out of sheer greed and in doing so caused great suffering.”

Frank: Un-Mirandized Statement to Cambodian Police Is Admissible

In U.S. v. Frank, No. 07-13685 (March 15, 2010), the Court affirmed convictions for traveling to Cambodia and engaging in illicit sexual conduct with minor children, in violation of 18 U.S.C. §§ 2423(b) and 2251A(b)(2)(A).

The Court rejected Frank’s argument that his un-Mirandized statements to Cambodian police in Cambodia should have been suppressed. The Court noted that Miranda only applies in a foreign country if American officials are involved in the questioning or if the questioning shocks the judicial conscience; here, American officials played no role in Frank’s questioning. Moreover, Frank’s questioning did not shock the judicial conscience.

The Court also rejected Frank’s challenge to the extraterritorial application of § 2251A. The Court found that Congress intended to apply this statute extraterritorially, because it criminalized conduct by a person who “travels in foreign commerce” and engages in any illicit sexual conduct.

The Court rejected the argument that Frank was not guilty of the “purchase” of a minor for the purpose of producing a sexually explicit visual depiction, because he paid the minors directly, not a third-party. “In the context of child prostitution, the minor herself is turned into an object or commodity, by selling her body to be used by the defendant for a certain purpose.”

The Court found that the prosecutor’s reference to the defendant in closing as a “shark” was not improper because it was responding to the defense characterization of the defendant as a “dolphin.”

Turning to sentencing, the Court found no plain error in imposing multiple sentences for both traveling to Cambodia and engaging in illicit sexual conduct, even though all the criminal activity happened during one single trip.

Davis: Pre-Gant Caselaw Excuses Unlawful Search

In U.S. v. Davis, No. 08-16654 (March 11, 2010), recognizing a Circuit split on this issue, the Court held that even though the police search of a vehicle was unreasonable under Arizona v. Gant, 129 S.Ct. 1710 (2009), the fruits of the search need not be suppressed, because the police were relying in good faith on pre-Gant precedent which authorized their search.

The Court first held that the constitutionality of a search, and the applicability of the exclusionary rule to suppress the fruits of the search, are separate questions. The application of the exclusionary rule is subject to the “good faith exception.” The Court emphasized that pre-Gant law was clear, and “unambiguously” authorized the search in this case. Consequently, the Court declined to apply the exclusionary rule.

Ternus: Stolen paintings conviction upheld

In U.S. v. Ternus, No. 07-14708 (March 2, 2010), the Court affirmed Ternus’ conviction for conspiracy to transport in interstate commerce stolen goods, in violation of 18 U.S.C. §§ 371 and 2314. The case involved four paintings stolen from a museum in Nice, France.

The Court rejected the argument that there was insufficient evidence that Ternus intended to transport the paintings in foreign commerce. The Court noted that Ternus pled guilty to the charge, including its jurisdictional element.

The Court also rejected the argument that the district court erred in accepting his guilty plea because of the lack of evidence on the jurisdictional element, pointing out that Ternus’ plan was for the paintings were to be brought to the United States.

Williams: Counsel not ineffective for failing to call psychopharmacologist

In Williams v. Allen, No. 08-11905 (March 4, 2010), the Court denied habeas relief to an Alabama death row inmate convicted of two murders in 1992.

The Court rejected Williams’ argument that his counsel was ineffective for pursuing an insanity defense. It was a “sound strategic decision.”

The Court also rejected Williams’ claim that counsel failed to adequately investigate an intoxication defense. The Court found that even had a psychopharmacologist been called as a witness by the defense, the jury could have concluded that the murders were purposeful, and therefore deserving of the death penalty.

Finally, the Court rejected the argument that counsel was ineffective for failing to object to burden-shifting jury instructions. The Court found that the jury was instructed to presume sanity, not intent.

Culver: 720-month sentence for child pornographer

In U.S. v. Culver, No. 07_14708 (March 2, 2010), the Court affirmed the conviction and 720-month sentence imposed on a defendant convicted of producing child pornography of his stepdaughter.

The Court rejected the argument that the Commerce Clause did not authorize Congress to criminalize Culver’s conduct, pointing out that “pornography begets pornography, regardless of its origin.”

The Court also rejected Culver’s Rule 404(b) challenge to admission of evidence that he used a stun gun against his stepdaughter, pointing out that this evidence was relevant to show that he rendered her unconscious to make the tape of her.

The Court also affirmed the exclusion of evidence of the victim’s prior sexual history. The Court found that Culver was given adequate opportunity to question the victim on cross-examination.

Turning to sentencing, the Court found it not unreasonable for the sentencing court to have increased Culver’s sentence based on findings that he drugged and shocked the victim, despite a State jury’s acquittal of Culver on these charges. The Court noted that a sentencing court can rely on acquitted conduct.

Rozier: Felon in Possession Crime is Constitutional

In U.S. v. Rozier, No. 08-17061 (March 4, 2010), the Court rejected the argument that 18 U.S.C. § 922(g)(1), which criminalizes a felon’s possession of a firearm, is unconstitutional in light of the right to bear arms recognized in District of Columbia v. Heller, 128 S.Ct. 2783 (2008). The Court noted that Heller stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”

Separately, the Court reaffirmed that life is the statutory maximum for violators of § 922(g)(1) how have been previously convicted of at least three serious drug offenses.

Brummer: Firearm forfeiture Mandatory

In U.S. v. Brummer, No. 09-13613 (March 8, 2010), the Court held that forfeiture of firearms or ammunition is mandatory for defendants convicted of knowingly and willfully failing to declare firearms to a common carrier, in violation of 18 U.S.C. § 922(e). The Court relied on the plain language of the statute, specifically its use of the word “shall” with reference to the order of forfeiture.

Bacon: Individually Attributable Quantities Only Trigger Mandatory Minimum

In U.S. v. Bacon, No. 08-10463 (March 4, 2010), the Court affirmed multi-defendant drug trafficking convictions, but vacated one sentence.

The Court rejected sufficiency of the evidence challenges, noting that the jury could rely on a defendant’s presence at a drug exchange as probative evidence.

Turning to sentencing, the Court found plain error in the district court’s failure to determine whether one defendant qualified for a mandatory minimum sentence based only on the quantity of drugs individually attributable to him.

Dodge: Transfer of sex materials to minor qualifies for sex offender registration

In U.S. v. Dodge, No. 08-10802 (March 5, 2010) (en banc), the Court held that a conviction for transferring obscene material to a minor in violation of 18 U.S.C. § 1470 qualifies as a “specified offense against a minor” and therefore subjects a sex offender to SORNA registration requirements.

The Court rejected the argument that the statute by implication excluded his offense from the list of qualifying offenses, noting the “broad purpose and scope of SORNA.”

The Court held that, in determining whether an offense met the SORNA definition, courts could look to the underlying conduct, not just to the elements of the offense. Here, Dodge evinced his intent that a thirteen-year old girl view him in a sexual state. This conduct qualified as a criminal offense against a minor.

DuBose: Protective Order Sufficed to Establish 922(g)(8) violation

In U.S. v. DuBose, No. 09-11400 (March 1, 2010), the Court affirmed a defendant’s conviction for possessing a firearm while subject to a protective order, in violation of 18 U.S.C. § 922(g)(8).

The Court rejected the argument that DuBose’s protective order did not meet the statute’s requirement that it involve preventing the use of physical force. The Court pointed out that the protective order enjoined DuBose from “hurting” his wife.

The Court also rejected DuBose’s attempt to challenge the validity of the Alabama protective order under Alabama. Pointing out that the Supreme Court foreclosed collateral attacks on prior felony convictions in felon in possession cases in Lewis v. United States, the Court applied the same rule to underlying protective orders in § 922(g)(8) prosecutions.