Duke v. Allen: Not Commenting on Defendant's Failure to Tesify

In Duke v. Allen, No. 09-16011 (May 26, 2011) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate.

During the prosecution’s closing argument, defense counsel objected to an apparent reference to the defendant’s failure to testify, and asked the trial court to note that the prosecutor was pointing at the defendant when he made the statement. The trial court, however, did not so note. The Court found that defense counsel therefore failed to preserve a record adequate to allow a reviewing court to review the claimed gesture by the prosecutor. Moreover, the “he” whom the prosecutor may have been commenting on might not have been the defendant, but the blood of a victim. [In dissent, Judge Wilson argued that “he” referred to the defendant, and the prosecution was therefore improperly commenting on the defendant’s failure to testify.]

Pietri: Failure to Present Metabolic Intoxication Defense not Ineffective

In Pietri v. Florida Dep’t of Corrections, No. 09-11750 (May 25, 2011), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1988 murder.

The Court rejected the argument that counsel were ineffective for failing to put on an “metabolic intoxication” defense. The Court noted that Pietri did not show that he was intoxicated at the time of the murder, and that “metabolic intoxication” was not a cognizable under Florida law at the time of Pietri’s trial.

The Court also rejected the argument that counsel were ineffective at the penalty phase for failing to present mitigating evidence. The Court found that trial counsel strategically decided not to present some of the mental health experts they consulted.

Friske: Insufficient Evidence of Obstruction "Nexus"

In U.S. v. Friske, No. 09-14915 (May 18, 2011), the Court reversed a conviction for attempting to obstruct an official proceeding by attempting to dispose of and hide assets involved in a forfeiture proceeding, in violation of 18 U.S.C. § 1512(c)(2). The Court found that the evidence was insufficient.

The evidence showed that Friske “was certainly acting suspiciously” in his attempts to recover sealed PVC pipes from under the pool deck of a person indicted for marihuana production. However, the offense required proof of a “nexus” between a person’s actions and the judicial proceedings he was attempting to obstruct. Here, no evidence showed that Friske was aware of, or could have foreseen, the forfeiture proceeding at issue. Speculation that Friske knew his actions would obstruct the forfeiture proceeding could not suffice to sustain his conviction.

Gilbert: Habeas unavailable to correct career offender sentence

In Gilbert v. U.S., No. 09-12513 (June 21, 2010), the Court held that even though a defendant had filed a prior § 2255 challenge to career offender sentencing status, he was entitled to habeas relief based on his claim that his prior conviction for carrying a concealed weapon was no longer an offense that would qualify as a crime of violence, and that he therefore was wrongfully sentenced as a career offender.

At his original sentencing, Gilbert was categorized as a career offender, based in part on a prior conviction for carrying a concealed weapon. At the time, carrying a concealed weapon was a qualifying offense for career offender status. Years later, Begay was decided, and this offense no longer so qualified. However, in the interim, Gilbert had brought an (unsuccessful) § 2255 challenge to his sentence. Consequently, his second habeas challenge could succeed only if (1) his claim was based on a retroactively applicable Supreme Court decision, (2) circuit law squarely foreclosed Gilbert’s claim at the time he first brought it, and (3) Gilbert was convicted for a nonexistent offense. The government conceded the first two points.

The Court concluded that Gilbert was was in effect convicted for a nonexistent offense when he was sentenced as a career offender. The Court stated that Gilbert was in jail today because he was found guilty of the “‘offense’ of being a career offender.” Drawing a parallel to death sentencing cases, the Court found that Gilbert was “actually innocent” of the aggravating factor – violent prior felonies – that were the basis for his career offender sentence. The Court noted: “The animating principle underlying the writ of habeas corpus is fundamental fairness.”

Martikainen: No Fleeing Law Enforcement Enhancement When Defendant was Unaware of Pursuit

In U.S. v. Martikainen, No. 10-13337 (May 10, 2011), the Court reversed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly endangering another in the course of fleeing from a law enforcement officer.

After a divorce and a visitation rights order, Martikainen absconded with his son by getting on a sailboat, and sailing into the Gulf of Mexico, where his sailboat was located and ultimately boarded by the Coast Guard. Martikainen cooperated with the boarding agents.

The Court noted that § 3C1.2 does not apply when there is no officer around. Here, law enforcement officers were tracking Martikainen’s sailboat but Martikainen was not fleeing any particular law enforcement officer, and was unaware of the Coast Guard pursuit until it was over, at which point he cooperated.

The sentencing court’s imposition of the § 3C1.2 enhancement was not harmless error, because the court stated that it was sentencing Martikainen in the middle of the guideline range, and this sentence exceeded the applicable range without the enhancement.

Siegelman: Affirming Most Convictions of Former Alabama Governor

In U.S. v. Siegelman, No. 09-13163 (May 10, 2011), on remand from the Supreme Court, the Court, in a 65-page opinion, affirmed some convictions and reversed others, in a case involving bribery and fraud charges against the former Governor of Alabama.

The Court affirmed convictions for violating 18 U.S.C. § 666(a)(1)(B), the federal bribery statute. The Court rejected the argument that the jury should have been instructed that bribery only occurs when payments are made in exchange for an “express” quid pro quo agreement. The Court found that this instruction would allow defendants to escape bribery liability by “knowing winks and nods.”

Turning to the honest services fraud convictions, the Court found that these convictions were unaffected by the Supreme Court recent decision in Skilling requiring a quid pro quo, because the offenses already charged a quid pro quo, and the jury were so instructed.

The Court found insufficient evidence to support Siegelman’s conviction of self-dealing in connection with the conduct of co-defendant Scrushy on an Alabama Board. The Court found that Siegelman had no awareness of Scrushy’s self-dealing. The Court also found insufficient evidence to support Scrushy’s self-dealing convictions. Post-Skilling, these convictions required a showing that Scrushy bribed someone, but there was insufficient evidence of such a bribe.

The Court affirmed a conviction of Siegelman for obstruction of justice, noting evidence showing that he tried to cover-up his receipt moneys through a false motorcycle transaction. The Court noted the jury’s split verdict on two obstruction counts, indicating that the jurors had carefully drawn inferences from circumstantial evidence.

The Court agreed with the district court’s finding that while the jury was exposed to extrinsic evidence, this exposure was harmless.

The Court rejected the argument that there were premature jury deliberations, as evidenced by an exchange of emails among jurors. The Court noted that Fed. R. Evid. 606(b) precludes inquiry of an individual juror into the validity of a verdict. Thus, although the emails would have been juror misconduct, the trial court was precluded from directly inquiring by interrogating jurors. In view of the length of deliberations, and the split verdict, the Court found no reversible error.

Finally, the Court found no error in the district court’s upward sentencing departure based on the loss of confidence suffered by the people of the state of Alabama in the integrity of its elected officials.

Lanzon: Attempt suffices to entice minor

In U.S. v. Lanzon, No. 09-14535 (May 4, 2011), the Court affirmed a conviction for attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).

The Court rejected Lanzon’s argument that he could not be convicted of attempt, because § 2422(b) required a State predicate crime, and his predicate crime was a Florida statute that required a completed sex offense, not just an attempt. The Court noted that the federal statute merely required an “attempt, and federal, not state, law governed this element of the offense. Moreover, the facts were sufficient to show an attempt: Lanzon conducted sexually explicit online conversations regarding a 14-year old, drove several miles to an arranged meeting place, and carried condoms and mint lubricant in his truck.

The Court also rejected Lanzon’s Fourth Amendment challenge to the warrantless seizure of materials from his truck, after his arrest. The Court found that the police had probable cause to believe the truck contained evidence of a crime.

The Court rejected Lanzon’s challenge to the police’s failure to preserve computer evidence of his communications with undercover officers. The Court noted that Lanzon failed to show “bad faith” on the part of the detective who transferred the instant message conversations to Word documents. The Court also rejected Lanzon’s challenge to the authentication of the messages, crediting the detective’s testimony that he participated in the online chats, and accurately copied the transcripts of the conversations. Moreover, the use of copied transcripts did not violate the best evidence rule, because the originals were not destroyed in bad faith. Finally, the Court found that the district court did not abuse its discretion in declining to give a “spoliation of evidence” jury instruction. Again, the Court noted the absence of bad faith in the detective’s actions.