Wetherald: Ex Post Facto Clause, Post-Booker, Applies to Guidelines

In U.S. v. Wetherald, No. 09-11687 (March 28, 2011), affirming multiple fraud convictions, the Court held that even though the Guidelines, post-Booker, are not mandatory, the Ex Post Facto Clause still requires a district court not to apply a harsher Guideline that took effect after the defendant’s conduct, unless the district court a sentencing makes clear that it does not feel bound by the more recent, harsher Guidelines. Here, the district court stated that it would impose a sentence below the advisory guideline range. Moreover, the district court in fact did impose significantly lower sentences than the guideline range. The defendants could only offer speculation that the district court’s sentences were affected by the more recent Guidelines. Thus, no Ex Post Facto violation occurred. The Court also rejected the argument that the fraud offense of convictions involved partnerships, not securities. The Court pointed out that the investors had no say in the decisions of the fraudulent entities at issue.

Beasley: SORNA Criminalizes Non-Registration Only After Travel

In U.S. v. Beasley, No. 09-11528 (March 28, 2011), on remand from the United States Supreme Court, the Court vacated a conviction of a defendant convicted of failing to register as required by the Sex Offender Registration and Notification Act. The Court noted that the Supreme Court’s decision in Carr v. U.S. held that a defendant only violates SORNA registration requirements if, after becoming subject to the registration requirements, he thereafter travels, and then fails to register. Carr’s holding reversed the Eleventh Circuit’s dedision U.S. v. Dumont, to the extent Dumont suggested that the registration elements do not have to be met in sequence. Here, Beasley traveled in interstate commerce before SORNA became applicable to him. Beasley therefore did not violate SORNA’s registration requirements.

Valarezo-Orobio: Scutting of vessel was "reasonably foreseeable"

In U.S. v. Valarezo-Orobio, No. 10-11222 (March 23, 2011), the Court upheld the imposition of an eight-level Guideline enhancement on a defendant convicted of operating a semi-submersible vessel in violation of 18 U.S.C. § 2285. The enhancement applies when the offense involves “the sinking of the vessel.” Valarezo-Orobio claimed that the sinking of the vessel was not reasonably foreseeable to him, and was done by his co-defendants.

Rejecting this argument, the Court noted that it is “well-known that semi-submersible vessels are frequently scuttled when confronted by authorities.” Moreover, “the overall speed with which the scuttling of the vessel occurred further supports the inference that the entire crew was aware of a standing plan to sink the vessel if faced with apprehension by authorities.”

Dean: Child Pornography Statute Not Overbroad

In U.S. v. Dean, No. 09-16133 (March 16, 2011), the Court rejected challenges to the constitutionality of a statute that makes it unlawful to produce child pornography, 18 U.S.C. § 1466A(a)(2).

Dean relied on the First Amendment “overbreadth” doctrine. The Court noted that a statute will be struck down as overbroad only if the overbreadth is “substantial” relative to its plainly legitimate sweep. Here, while the statute criminalizes some speech that is not child pornography, for example, an “explicit film version of the novel Lolita,” the overbreadth is not “substantial” in relation to the statute’s legitimate reach. The Court noted that the statute requires a showing that the activity lacks “serious literary, artistic, political or scientific value.” Moreover, the materials that would not be not be “patently offensive,” and therefore deserving of First Amendment protection, would not be substantial in relation to materials that would be “patently offensive.” The Court distinguished Ashcroft v. Free Speech Coalition, because the statute at issue in that case had no exception for materials that were non-obscene by reason of their serious literary, artistic, political, or scientific value.

The Court rejected the argument that the statute was not narrowly tailored because the “knowingly” mens rea only referenced the verbs in the statute, not the characteristics of the image that make it unlawful. The Court held that the word “knowingly” refers to the image characteristics listed in the statute.

Turning to the sentence, the Court noted the authorities, including a paper by federal public defender Troy Stabenow, which argue that the Guidelines for child-pornography offenses are overly severe as applied to “the typical downloader of child pornography.” The Court noted that Dean was not a typical downloader, having sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films.

Jordan: No selective prosecution where defendant did not rely on evidence regarding similarly-situated defendants

In U.S. v. Jordan, No. 10-11534 (March 16, 2011), the Court affirmed a felon in possession of a firearm conviction.

The Court rejected Jordan’s Fourth Amendment challenge to his seizure. The Court noted that Jordan’s encounter with police occurred in an “area known for crime.” Jordan suspiciously became defensive when confronted about walking in the middle of the street, belligerently yelling that he had done nothing wrong. One police officer saw a gun-shaped bulge in Jordan’s pocket. Jordan fled, and was then chased and seized. His seizure in these circumstances did not violate the Fourth Amendment.

The Court rejected Jordan’s argument that his prosecution as an armed career criminal was “selective” and therefore unconstitutional. Jordan pointed out that African-Americans account for approximately 93% of ACCA prosecutions in the Northern District of Georgia, even though they account for significantly less than this number in the population of convicted felons who carry firearms. The Court noted that Jordan did not include the criminal histories of the other defendants, and therefore failed to establish how “similarly-situated” defendants were affected.

Finally, citing binding precedent, the Court rejected Jordan’s claim that 18 U.S.C. § 922(g)(1) exceeded Congress’ power under the Commerce Clause.

Gamory: Life Sentenced for Drug Dealer

In U.S. v. Gamory, No. 09-13929 (March 11, 2011), the Court affirmed drug trafficking and money laundering convictions, and a sentence of life imprisonment.

The Court rejected Gamory’s argument that he was wrongly denied a Franks hearing regarding the falsity of an affidavit that supported an application for a search warrant. The Court explained that even if the statement in the affidavit was false, there other evidence that supported probable cause for the warrant.

Reviewing the issue for “plain error,” the Court rejected the challenge to the district court’s admission of a rap video during the trial. The Court recognized that it was error to admit the video in evidence, because the lyrics contained violence and profanity, and was not clearly probative of Gamory’s guilt. Moreover, a reference to “hush money” in the video was hearsay, because the government claimed that it was introduced for its truth, i.e. that the “hush money” evidenced that Gamory was a drug dealer. But the error in admitting the video was harmless, because of other evidence, including testimony from several of Gamory’s co-conspirators, corroborated by surveillance, and drug ledgers.

The Court rejected Gamory’s Batson challenge to jury selection, finding that the prosecutor gave race-neutral reasons (e.g. one juror had difficulty reading) that the defendant failed to rebut.

Jackson: Rule 32 does not apply to revocation hearings

In U.S. v. Jackson, No. 10-13019 (Feb. 24, 2011), the Court affirmed a 21-month sentence imposed on a revocation of supervised release.

The Court held that Fed. R. Crim. P. 32(i)(1)(A), which requires a district court to verify at sentencing that the defendant and the defendant’s attorney have read and discussed the presentence report, does not apply to probation office reports prepared for a revocation hearing. Therefore, the district court’s failure to so verify during Jackson’s revocation hearing was not in error.

The Court rejected Jackson’s substantive reasonableness challenge to the length of his sentence, noting that he had not shown how a lesser sentence would help his “anger management problem.”

Schmitz: Error to ask "Were-they-lying" questions

In U.S. v. Schmitz, No. 09-14452 (March 4, 2011), the Court reversed convictions for theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), but affirmed mail fraud convictions obtained against an Alabama state legislator who collected $177,000 in salary for a federal program but did little or no work.

Reviewing the issue for plain error, the Court found that it was “error” for the prosecution to repeatedly ask the defendant, on cross-examination, whether prosecution witnesses were “lying” when they testified to matters inconsistently with the defendant’s version of events. The Court held that “were-they-lying?” questions are improper for four reasons.

First, “were-they-lying” questions are not permitted by the Federal Rules of Evidence. They ask a witness to testify about matters beyond the witness’ personal knowledge.

Second, “were-they-lying” questions usurp the jury’s role as the sole maker of credibility determinations.

Third, “were-they-lying” questions put the defendant in a no-win situation of either accusing another witness of lying, or undermining his own version of events.

Fourth, the predominant purpose of the questions is to “make the defendant look bad.”

The Court recognized that in some circumstances a “were-they-lying” question might be appropriate, for example, when the defendant opened the door to such a question by testifying on direct about the truthfulness of another witness.

The error in Schmitz’ case was not “plain” because this was a matter of first impression in the Eleventh Circuit.

Turning to the indictment, the Court held that the counts charging § 666 thefts should have been dismissed, because the government neglected to allege any facts supporting these charges. The Court rejected the argument that the facts alleged in the mail fraud counts could be incorporated into the § 666 counts. The Court noted that each count of an indictment is treated independently, unless it incorporates another count by express reference, which the indictment here failed to do.

The Court found sufficient evidence to support the mail fraud counts, noting that the jury could reasonably infer that three letters Schmitz mailed were in furtherance of her fraudulent scheme to obtain pay for a job at which she did nothing.

Rose: Unpresented mitigation evidence not sufficient for habeas relief

In Rose v. McNeil, No. 10-11848 (March 4, 2011), the Court denied habeas relief to a Florida death row inmate sentenced to death for a 1982 murder, rejecting an argument that defense counsel was ineffective for failing to investigate and present mitigation evidence at the penalty phase of Rose’s trial.

The Court found it unnecessary to address counsel’s performance, because the ineffectiveness claim could be disposed by examining whether Rose suffered any “prejudice” as a result of the failure to introduce certain mitigation evidence.

The Court noted that much of the mitigation evidence Rose argued should have been presented at his trial would have been duplicative of evidence that was presented.

The non-duplicative evidence was “weak.” For example, the evidence of organic brain damage showed “minimal” damage. Evidence of Rose’s childhood was “double-edged” as it would have brought out Rose’s “violent” past.

In sum, the unpresented mitigation evidence did not undermine the Court’s confidence in the outcome.

Almanzar: District Court Usurped Role of Jury

In U.S. v. Almanzar, No. 10-11481 (March 4, 2011),the Court found that the district court usurped the role of the jury by granting a motion for a judgment of acquittal, after the jury gave a guilty verdict that convicted a defendant of methamphetamine trafficking.

The case involved a woman, Almanzar, who was stopped with her brother, an illegal immigrant, in a truck which contained sealed packages containing methamphetamine. The district court granted a judgment of acquittal based in part on its view that a Hispanic woman would trust blindly her male sibling. But that information was never presented to the jury. Moreover, the jury weighed the evidence, and made the credibility determinations. Sufficient evidence was presented to support the conviction.

Naranjo: Sufficient Concealment for Money Laundering

In U.S. v. Naranjo, No. 08-13814 (March 2, 2011), the Court affirmed concealment money laundering convictions.

The Court rejected the argument that the government failed to prove “concealment.” The Court pointed out that while Naranjo signed the checks from his fraudulent companies, he tried to conceal his association with the bank accounts on which the checks were drawn. “It is irrelevant that Naranjo left enough evidence to allow a novice investigator to trace these cash withdrawals to Naranjo . . . because the statute requires only that proceeds be concealed, not that they be concealed well.” The Court also noted that large cash withdrawals are more difficult to trace than funds transferred between accounts.

The Court dismissed as “at best, speculative” Naranjo’s claim that a state report on his companies was exculpatory and therefore should have been turned over as Brady material. The Court noted that Brady does not require federal prosecutors to disclose Brady material possessed by state investigators.

The Court also rejected Naranjo’s Due Process and Confrontation Clause challenge to the admission of summary chart evidence. The Court noted that summary charts are admissible where (as here) the supporting evidence was previously presented to the jury, the court has made it clear that the jury decides what weight to give the summary, and the defense has an opportunity to cross-examine a witness concerning any disputed issue. The Confrontation Clause challenge failed because the data summarized was admissible under the business records exception to hearsay, and was not subject to exclusion under the Confrontation Clause.