In U.S. v. Paige, No. 09-13067 (April 27, 2010), the Court affirmed convictions of a parent for permitting a minor child to engage in sexually explicit conduct for the purpose of producing child pornography, rejecting the argument that 18 U.S.C. § 2251(b) exceeded the scope of Congress’ authority under the Commerce Clause.
The Court found that “there is nothing irrational about Congress’s conclusion that failure to regulate the intrastate production of child pornography, by punishing parents who permit their minor children to participate in the production of child pornography, would undermine its regulation of the interstate child pornography market, especially where Congress’s goal is to eradicate the interstate market in its entirety.” The non-commercial nature of Paige’s photographs of his own child was therefore irrelevant. Moreover, Paige took the photographs to put on a website, thus establishing the interstate nexus.
Wednesday, April 28, 2010
Crape: Insanity Acquittee Revocation Must Involve Failure to Comply with Regimen
In U.S. v. Crape, No. 09-12470 (April 21, 2010), the Court held that a district court has authority to revoke the conditional discharge of a person who was acquitted by reason of insanity and then committed, only if the person has failed to comply with his regimen of treatment.
Though recognizing that its position conflicted with decisions in three other Circuits, the Court held that the plain language of 18 U.S.C. § 4243(g), coupled with its legislative history, makes an acquittee’s failure to follow his doctors’ orders a prerequisite to the revocation of his release. The Court rejected the argument that the statute gave district courts authority to revoke a conditional discharge simply because an acquittee is “dangerous.” The Court pointed out that § 4243 differed from the supervised release statute, which delegates broader authority to district courts with regard to violations of supervised release.
Though recognizing that its position conflicted with decisions in three other Circuits, the Court held that the plain language of 18 U.S.C. § 4243(g), coupled with its legislative history, makes an acquittee’s failure to follow his doctors’ orders a prerequisite to the revocation of his release. The Court rejected the argument that the statute gave district courts authority to revoke a conditional discharge simply because an acquittee is “dangerous.” The Court pointed out that § 4243 differed from the supervised release statute, which delegates broader authority to district courts with regard to violations of supervised release.
Dean: Attorney General Could ByPass Notice & Comment on SORNA Rules
In U.S. v. Dean, No. 09-13115 (April 28, 2010), the Court held that the Attorney General had “good cause” to promulgate the rule making sex offender registration requirements applicable to sex offenders convicted prior to SORNA’s enactment without a pre-promulgation notice and comment period.
The Court found that bypassing the notice and comment period allowed the government to immediately start prosecuting sex offenders who failed to register in state registries, thus reducing the risk of additional sexual offenses. The Court therefore found that public safety justified by passing notice and comment on the Attorney General’s rule.
The Court found that bypassing the notice and comment period allowed the government to immediately start prosecuting sex offenders who failed to register in state registries, thus reducing the risk of additional sexual offenses. The Court therefore found that public safety justified by passing notice and comment on the Attorney General’s rule.
Monday, April 19, 2010
Lee: Substantial Step Toward Enticement of Minor Need not be toward Causing Conduct
In U.S. v. Lee, No. 08-17077 (April 16, 2010), the Court affirmed convictions for attempted enticement of a minor, and child pornography charges.
The Court rejected Lee’s sufficiency of the evidence challenge to his convictions. Lee argued that he could not be guilty of attempted enticement of a minor because he dealt only with an adult (an undercover agent), with regard to two fictitious minors. The Court found that, for purposes of violating the enticement statute, one can “induce” a minor by dealing with an adult who has charge of the minor, like a parent or guardian. The Court cited precedent holding that an actual minor is not needed to violate the statute: fictitious minors suffice.
The Court rejected the argument that Lee had not taken a “substantial step” toward committing the offense. The Court pointed out that a substantial step toward “causing assent” to sex with a minor suffices; the substantial step need not be “toward causing actual sexual conduct.” The Court found sufficient evidence that Lee had taken a substantial step toward causing assent, including his promise not to harm the minor girls during intercourse.
[Martin, J., dissenting, argued that the substantial step evidence was insufficient, pointing out that during the telephone calls “the plans were never more than general talk about what could happen in the future,” and the defendant did not take any step beyond the boundaries of his property.]
The Court rejected Lee’s sufficiency of the evidence challenge to his convictions. Lee argued that he could not be guilty of attempted enticement of a minor because he dealt only with an adult (an undercover agent), with regard to two fictitious minors. The Court found that, for purposes of violating the enticement statute, one can “induce” a minor by dealing with an adult who has charge of the minor, like a parent or guardian. The Court cited precedent holding that an actual minor is not needed to violate the statute: fictitious minors suffice.
The Court rejected the argument that Lee had not taken a “substantial step” toward committing the offense. The Court pointed out that a substantial step toward “causing assent” to sex with a minor suffices; the substantial step need not be “toward causing actual sexual conduct.” The Court found sufficient evidence that Lee had taken a substantial step toward causing assent, including his promise not to harm the minor girls during intercourse.
[Martin, J., dissenting, argued that the substantial step evidence was insufficient, pointing out that during the telephone calls “the plans were never more than general talk about what could happen in the future,” and the defendant did not take any step beyond the boundaries of his property.]
Wednesday, April 14, 2010
Fowler: "Possible" Investigation Sufficient for 1512 Murder Liability
In U.S. v. Fowler, No. 08-15463 (April 14, 2010), the Court found sufficient evidence to support a conviction for murder with the intent to prevent a person from communicating information about a federal offense to a federal law enforcement officer, in violation of 18 U.S.C. § 1512(a)(1)(C).
Fowler shot a police officer in the back of the head while the officer had stopped a group of persons who were preparing to rob a bank, and who possessed firearms, a stolen car, and narcotics – i.e., were committing federal crimes that “could have led to a federal investigation and prosecution.” Consequently, Fowler had the requisite mens rea to violate 18 U.S.C. § 1512(a)(1)(C), which criminalizes killings intended to prevent communication relating to “possible commission” of a federal offense. (Emphasis in original). Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), which similarly interpreted a similarly-worded statute, the Court held that the government need only prove “that the defendant intended to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense.”
Fowler shot a police officer in the back of the head while the officer had stopped a group of persons who were preparing to rob a bank, and who possessed firearms, a stolen car, and narcotics – i.e., were committing federal crimes that “could have led to a federal investigation and prosecution.” Consequently, Fowler had the requisite mens rea to violate 18 U.S.C. § 1512(a)(1)(C), which criminalizes killings intended to prevent communication relating to “possible commission” of a federal offense. (Emphasis in original). Citing U.S. v. Veal, 153 F.3d 1233 (11th Cir. 1998), which similarly interpreted a similarly-worded statute, the Court held that the government need only prove “that the defendant intended to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense.”
Lena-Encinas: No Miranda Custody When Seized In Frontyard
In U.S. v. Lena-Encinas, No. 08-12574 (April 13, 2010), the Court held that a defendant was not “in custody” for Miranda purposes, and affirmed the denial of a motion to suppress unMirandized statements he made to police.
The Court noted that merely being “seized” does not suffice to establish custody: the person must feel not free to leave “to a degree associated with a formal arrest.”
Lena-Encinas was encountered by police in the backyard of a townhouse. Police had their weapons out of their holsters, pointing downward. Police instructed Lena-Encinas to sit down while the townhouse was being secured, and stated that he was not a suspect. During the next ten minutes, Lena-Encinas was escorted to the front of the townhouse, and told not to speak. After police obtained information that there was a firearm in the townhouse, they asked Lena-Encinas about it. The Court held that Lena-Encinas’ response – that a firearm was under a mattress in the townhouse – was not obtained in violation of Miranda.
Lena-Encinas “was on familiar ground in his own front yard.” His detention “lasted a mere five minutes.” Lena-Encinas never asked to leave the premises, nor informed the officers that he did not wish to comply with their requests. Therefore, even assuming Lena-Encinas had been seized, he “would not have believed that he was utterly at the mercy of the police.” He was not in custody for Miranda purposes.
The Court noted that merely being “seized” does not suffice to establish custody: the person must feel not free to leave “to a degree associated with a formal arrest.”
Lena-Encinas was encountered by police in the backyard of a townhouse. Police had their weapons out of their holsters, pointing downward. Police instructed Lena-Encinas to sit down while the townhouse was being secured, and stated that he was not a suspect. During the next ten minutes, Lena-Encinas was escorted to the front of the townhouse, and told not to speak. After police obtained information that there was a firearm in the townhouse, they asked Lena-Encinas about it. The Court held that Lena-Encinas’ response – that a firearm was under a mattress in the townhouse – was not obtained in violation of Miranda.
Lena-Encinas “was on familiar ground in his own front yard.” His detention “lasted a mere five minutes.” Lena-Encinas never asked to leave the premises, nor informed the officers that he did not wish to comply with their requests. Therefore, even assuming Lena-Encinas had been seized, he “would not have believed that he was utterly at the mercy of the police.” He was not in custody for Miranda purposes.
Monday, April 12, 2010
Powell: Insufficient Evidence of Mental Retardation to Bar Death Penalty
In Powell v. Allen, No. 08-16784 (April 8, 2010), the Court affirmed the denial of habeas relief to an Alabama death row inmate.
The Court, inter alia, rejected Powell’s claim that he is sufficiently mentally retarded that his execution is constitutionally barred. The Court noted that a finding of mental retardation requires both significantly subaverage intellectual functioning and significant deficits in adaptive functioning. Powell failed to plead facts to establish these findings.
The Court, inter alia, rejected Powell’s claim that he is sufficiently mentally retarded that his execution is constitutionally barred. The Court noted that a finding of mental retardation requires both significantly subaverage intellectual functioning and significant deficits in adaptive functioning. Powell failed to plead facts to establish these findings.
Monday, April 05, 2010
Coast: Two Criminal History Points for Driving with Suspended Licence Conviction
In U.S. v. Coast, No. 17-116 (April 5, 2010), the Court affirmed adding two points to a defendant’s criminal history for a prior conviction for driving with a suspended license.
Coast had originally been sentenced to probation. Had this remained his only sentence, the prior conviction would not have qualified for the two criminal history points under U.S.S.G. § 4A1.2(c)(1). However, Coast’s probation was revoked, and he was sentenced to 219 days’ incarceration, more than the 30-day threshold for counting prior convictions. The Court noted that revocation of probation is part of an original sentence. Moreover, the Guidelines focus on the length of the sentence, not the nature of the conviction.
Coast had originally been sentenced to probation. Had this remained his only sentence, the prior conviction would not have qualified for the two criminal history points under U.S.S.G. § 4A1.2(c)(1). However, Coast’s probation was revoked, and he was sentenced to 219 days’ incarceration, more than the 30-day threshold for counting prior convictions. The Court noted that revocation of probation is part of an original sentence. Moreover, the Guidelines focus on the length of the sentence, not the nature of the conviction.
Jones: Speedy Trial Act Violation
In U.S. v. Jones, No. 08-16999 (Apr. 2, 2010), the Court reversed two felon-in-possession of a firearm and ammunition convictions because of a Speedy Trial Act violation, affirmed two felon-in-possession convictions, and remanded for resentencing.
Jones was convicted of two counts of being a felon-in-possession, but the Court of Appeals overturned these convictions. After a remand, the government, after obtaining additional information from a jailhouse informant, re-indicted Jones, this time on four felon-in-possession counts. The jury convicted Jones on all four counts.
Jones argued that the two original counts should be dismissed on Speedy Trial grounds because of the passage of 70-day deadline between the issuance of the mandate on his first appeal and the commencement of his second trial. The Court agreed, pointing out that when, as occurred here, the district court decides a pre-trial motion without a hearing, this court has 30 “excludable days” to rule on a motion – thereafter, the days count against the Speedy Trial deadline. Once the excludable days were taken into account, a total of 75 days elapsed before Jones was brought to trial. Hence, a Speedy Trial violation occurred.
However, the Court found that the district court could dismiss the affected counts “without prejudice” instead of “with prejudice,” because Jones was charged with “serious crimes,” the government’s delay was “excusable” because its interpretation of the Speedy Trial Act was “colorable,” and the five-day delay was “brief.”
The Court rejected the argument that Double Jeopardy required dismissal of the two new counts of the indictment. The charged acts of possession did not constitute a continuing course of conduct. Instead, the defendant possessed different weapons – two firearms and different ammunition for each firearm – at different times and or places. The government could therefore treat them as (four) different units of prosecution. For this same reason, the indictment was not multiplicitous.
The Court also rejected the argument that the prosecution vindictively added two counts to the indictment. The Court noted that the new information the government obtained after Jones’ win on appeal gave it sufficient evidence “to confidently bring the additional possession charges.”
The Court found no reversible error in the district court’s admission of the videotaped statement of a witness. The witness was unable to remember the subject matter of the video. The statement was therefore admissible under Fed. R. Evid. 803(5) as past recollection recorded, because the witness gave adequate verification of the accuracy of the contents of the video. The Court found no Confrontation Clause violation in the admission of the video, pointing out that the witness was subject to cross-examination at trial.
The Court also found no reversible error in allowing the video tape to be played for the jury during deliberations – even though the video was not received in evidence as an exhibit. The Court assumed that it was error to allow the video to be played for the jury during deliberations, but found the error harmless because the video “provided only cumulative evidence.”
Finally, the Court found no Jencks Act or Brady violation in the government’s failure to turn over a letter written by one of its cooperating witnesses. The Court found the nondisclosure harmless, because any additional impeachment value would have been “minimal.”
Jones was convicted of two counts of being a felon-in-possession, but the Court of Appeals overturned these convictions. After a remand, the government, after obtaining additional information from a jailhouse informant, re-indicted Jones, this time on four felon-in-possession counts. The jury convicted Jones on all four counts.
Jones argued that the two original counts should be dismissed on Speedy Trial grounds because of the passage of 70-day deadline between the issuance of the mandate on his first appeal and the commencement of his second trial. The Court agreed, pointing out that when, as occurred here, the district court decides a pre-trial motion without a hearing, this court has 30 “excludable days” to rule on a motion – thereafter, the days count against the Speedy Trial deadline. Once the excludable days were taken into account, a total of 75 days elapsed before Jones was brought to trial. Hence, a Speedy Trial violation occurred.
However, the Court found that the district court could dismiss the affected counts “without prejudice” instead of “with prejudice,” because Jones was charged with “serious crimes,” the government’s delay was “excusable” because its interpretation of the Speedy Trial Act was “colorable,” and the five-day delay was “brief.”
The Court rejected the argument that Double Jeopardy required dismissal of the two new counts of the indictment. The charged acts of possession did not constitute a continuing course of conduct. Instead, the defendant possessed different weapons – two firearms and different ammunition for each firearm – at different times and or places. The government could therefore treat them as (four) different units of prosecution. For this same reason, the indictment was not multiplicitous.
The Court also rejected the argument that the prosecution vindictively added two counts to the indictment. The Court noted that the new information the government obtained after Jones’ win on appeal gave it sufficient evidence “to confidently bring the additional possession charges.”
The Court found no reversible error in the district court’s admission of the videotaped statement of a witness. The witness was unable to remember the subject matter of the video. The statement was therefore admissible under Fed. R. Evid. 803(5) as past recollection recorded, because the witness gave adequate verification of the accuracy of the contents of the video. The Court found no Confrontation Clause violation in the admission of the video, pointing out that the witness was subject to cross-examination at trial.
The Court also found no reversible error in allowing the video tape to be played for the jury during deliberations – even though the video was not received in evidence as an exhibit. The Court assumed that it was error to allow the video to be played for the jury during deliberations, but found the error harmless because the video “provided only cumulative evidence.”
Finally, the Court found no Jencks Act or Brady violation in the government’s failure to turn over a letter written by one of its cooperating witnesses. The Court found the nondisclosure harmless, because any additional impeachment value would have been “minimal.”
Friday, April 02, 2010
Santiago: Florida probation and adjudication withheld is a "conviction"
In U.S. v. Santiago, No. 09-10466 (April 2, 2010), the Court held that a guilty plea followed by a sentence of probation and a withholding of adjudication under Florida law qualified as a prior “conviction” for purposes of enhancing an offender’s sentence under 18 U.S.C. § 922(g)(1).
Rejecting the defendant’s interpretation of the statute, the Court noted that the determination whether a prior judgment should be treated as a “conviction” was a matter of State law. Here, Florida’s habitual offender law expressly provided that a sentence of probation without an adjudication of guilty “shall be treated as a prior conviction.” Thus, Santiago’s prior judgment, along with two other prior convictions, qualified him for the enhanced sentence.
Rejecting the defendant’s interpretation of the statute, the Court noted that the determination whether a prior judgment should be treated as a “conviction” was a matter of State law. Here, Florida’s habitual offender law expressly provided that a sentence of probation without an adjudication of guilty “shall be treated as a prior conviction.” Thus, Santiago’s prior judgment, along with two other prior convictions, qualified him for the enhanced sentence.
Thursday, April 01, 2010
Suarez: Alien Smuggling Convictions Affirmed
In U.S. v. Suarez, No. 08-13675 (March 31, 2010), the Court affirmed alien smuggling convictions and sentences.
The Court rejected the argument that the indictment should be dismissed because the government repatriated to Cuba the group of Cubans on the boat being smuggled to the United States – Cubans who would have testified that they forced their way onto a boat destined only for relatives of the defendant. The Court noted that the defendant never raised this defense during interviews with the Coast Guard, and was otherwise potentially able to present it at trial. Further, the government did not repatriate the Cubans in bad faith, but in accordance with “standard operating procedure.”
The Court also rejected the argument that the application for electronic surveillance was invalid because other investigative procedures were not adequately tried, as the statute requires. The Court cited evidence physical surveillance was used, and testimony that “pen registers and trap and trace devices were not entirely useful because of the probability of multiple subscribers to the previously identified phone numbers and the frequent use of aliases.”
The Court also rejected the argument that the government failed to minimize the interception of communications not subject to wiretap. The Court found that the small number of “minimized” calls was not evidence, standing alone, of unreasonable minimization procedures.
The Court rejected the argument that the defendant should have been able to introduce in evidence a government witness’ prior inconsistent statement made to law enforcement agent. The Court noted that the witness, when questioned about the statement, did not adopt it. Further, it was not admitted as an admission of the declarant’s state of mind, because the witness was not the declarant of the statement, and the statement was made after, not during, the incident.
The Court found that a prosecutor’s vouching for a witness in closing argument did not prejudice the defendant’s substantial rights, pointing out that the judge instructed the jury on how to evaluate witness credibility.
Turning to sentencing, the Court affirmed the imposition of a “special skills” sentence enhancement under USSG § 3B1.3. The Court found that “the average person could not operate a vessel . . . without the use of [the defendant’s] unique skills.” The Court also affirmed the enhancement for causing a substantial risk of death, because 36 individuals were on board a vessel designed to hold no more than 12, and no life jackets were available. It found no double counting occurred as a result of the additional enhancement for endangerment during flight, which was based on a two-hour high-speed chase.
Finally, the Court rejected the argument that a five-year statutory maximum applied to his offense, pointing out that convictions under 8 U.S.C. § 1324(a)(1)(A)(v)(I) carry a ten-year maximum.
The Court rejected the argument that the indictment should be dismissed because the government repatriated to Cuba the group of Cubans on the boat being smuggled to the United States – Cubans who would have testified that they forced their way onto a boat destined only for relatives of the defendant. The Court noted that the defendant never raised this defense during interviews with the Coast Guard, and was otherwise potentially able to present it at trial. Further, the government did not repatriate the Cubans in bad faith, but in accordance with “standard operating procedure.”
The Court also rejected the argument that the application for electronic surveillance was invalid because other investigative procedures were not adequately tried, as the statute requires. The Court cited evidence physical surveillance was used, and testimony that “pen registers and trap and trace devices were not entirely useful because of the probability of multiple subscribers to the previously identified phone numbers and the frequent use of aliases.”
The Court also rejected the argument that the government failed to minimize the interception of communications not subject to wiretap. The Court found that the small number of “minimized” calls was not evidence, standing alone, of unreasonable minimization procedures.
The Court rejected the argument that the defendant should have been able to introduce in evidence a government witness’ prior inconsistent statement made to law enforcement agent. The Court noted that the witness, when questioned about the statement, did not adopt it. Further, it was not admitted as an admission of the declarant’s state of mind, because the witness was not the declarant of the statement, and the statement was made after, not during, the incident.
The Court found that a prosecutor’s vouching for a witness in closing argument did not prejudice the defendant’s substantial rights, pointing out that the judge instructed the jury on how to evaluate witness credibility.
Turning to sentencing, the Court affirmed the imposition of a “special skills” sentence enhancement under USSG § 3B1.3. The Court found that “the average person could not operate a vessel . . . without the use of [the defendant’s] unique skills.” The Court also affirmed the enhancement for causing a substantial risk of death, because 36 individuals were on board a vessel designed to hold no more than 12, and no life jackets were available. It found no double counting occurred as a result of the additional enhancement for endangerment during flight, which was based on a two-hour high-speed chase.
Finally, the Court rejected the argument that a five-year statutory maximum applied to his offense, pointing out that convictions under 8 U.S.C. § 1324(a)(1)(A)(v)(I) carry a ten-year maximum.
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