In Pooler v. Sec., Fla. Dep’t of Corrections, No. 12-12059 (Dec. 17, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1995 murder.
The Court rejected the argument that defense counsel was ineffective during the penalty phase of the case by failing to locate records that would show Pooler’s background. The Court noted the efforts counsel made, and the justifiable reliance on the information Pooler himself furnished.
The Court also found no ineffective assistance in counsel’s reliance on only two mental health experts, or the failure to highlight Pooler’s alcohol use on the day of the murder, which “may not have been mitigating in the jury’s eyes, and may well have opened the door not only to evidence of Pooler’s cavorting with a prostitute hours before he brutally killed his ex-girlfriend, but also to the abundant evidence of Pooler’s bad temper and propensity to violence when he was drunk.”
The Court also rejected Pooler’s attempt to rely on the Supreme Court’s decision in Porter v. McCollum, finding the ineffectiveness of counsel in that case distinguishable.
Thursday, December 27, 2012
Wednesday, December 12, 2012
Thompson: Restoration of right to vote not sufficient for possession of firearm
In U.S. v. Thompson, No. 11-15122 (December 11, 2012), the Court held that although a defendant’s right to vote had been restored following an earlier Alabama assault conviction, this did not mean his civil rights had been restored for purposes of exempting him from being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The Court pointed out that the statute refers to the restoration of civil rights, in the plural. Only Thompson’s right to vote was restored. His right to serve on a jury, and to hold public office, were not restored.
The Court rejected the argument that “voting rights” encompasses several attendant rights, including the right to vote in federal elections, and state elections, and primaries. “[T]he fact remains that Thompson had only one of the three key civil rights restored: the right to vote.”
The Court pointed out that the statute refers to the restoration of civil rights, in the plural. Only Thompson’s right to vote was restored. His right to serve on a jury, and to hold public office, were not restored.
The Court rejected the argument that “voting rights” encompasses several attendant rights, including the right to vote in federal elections, and state elections, and primaries. “[T]he fact remains that Thompson had only one of the three key civil rights restored: the right to vote.”
Laist: 25-day computer seizure not unreasonable
In U.S. v. Laist, No. 11-15531 (Dec. 11, 2012), the Court held that a government 25-day delay in submitting an application for a search warrant while holding a computer based on probable cause was not an unreasonable seizure under the Fourth Amendment.
The Court first rejected the argument that the six days during which the search warrant application was submitted to and under consideration by a federal magistrate judge should be counted, in addition the preceding 25 days, in determining the unreasonableness of the delay. The Court distinguished the deterrent effect of the exclusionary rule on law enforcement agents from its effect on magistrate judges.
Turning to the 25-day delay, the Court emphasized that the defendant had a “diminished” possessory interest his computer, because he had an opportunity, when the computers were seized, to copy or remove personal documents. Moreover, the defendant admitted to the presence of illicit child pornography images on his computer.
The Court also found that the FBI Agent promptly started preparing the search affidavit once it was needed, and included “very substantial amount information” as to the defendant’s conduct in pages 14-17 of the affidavit. The Court noted that the investigation of the case took roughly a year, and that the Agent worked in a two-person office that covered ten Georgia counties. “The government’s efforts here were sufficiently diligent to pass muster under the Fourth Amendment.” The Court distinguished U.S. v. Mitchell, in which the Court had found a 21-day delay to be unreasonable under the Fourth Amendment, finding the facts “readily distinguishable” – and pointing to Laist’s “diminished personal interest in his computer.”
The Court first rejected the argument that the six days during which the search warrant application was submitted to and under consideration by a federal magistrate judge should be counted, in addition the preceding 25 days, in determining the unreasonableness of the delay. The Court distinguished the deterrent effect of the exclusionary rule on law enforcement agents from its effect on magistrate judges.
Turning to the 25-day delay, the Court emphasized that the defendant had a “diminished” possessory interest his computer, because he had an opportunity, when the computers were seized, to copy or remove personal documents. Moreover, the defendant admitted to the presence of illicit child pornography images on his computer.
The Court also found that the FBI Agent promptly started preparing the search affidavit once it was needed, and included “very substantial amount information” as to the defendant’s conduct in pages 14-17 of the affidavit. The Court noted that the investigation of the case took roughly a year, and that the Agent worked in a two-person office that covered ten Georgia counties. “The government’s efforts here were sufficiently diligent to pass muster under the Fourth Amendment.” The Court distinguished U.S. v. Mitchell, in which the Court had found a 21-day delay to be unreasonable under the Fourth Amendment, finding the facts “readily distinguishable” – and pointing to Laist’s “diminished personal interest in his computer.”
Monday, November 26, 2012
Rozier: Johnson does not entitle 2255 movant to relief
In Rozier v. U.S., No. 11-13557 (Nov. 21, 2012) (2-1), the Court held that a movant pursuant to 28 U.S.C. § 2255 was not entitled to relief from his sentence based on the United States Supreme Court’s decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).
In 2001, Rozier was sentenced as a career offender. His career offender status was based in part on a prior conviction for battery on a police officer in violation of Fla. Stat. § 784.07(2)(b). Years after his sentence was affirmed on appeal, the Supreme Court decided Johnson, in which it held that, under the “elements clause” of the career offender guideline, a Florida felony battery did not qualify as a predicate offense. Johnson did not reach whether the offense qualified under the Guideline’s “residual clause.”
The Court recognized that Johnson is retroactively applicable. However, because Johnson did not reach whether a Florida battery qualified as a predicate offense under the “residual clause” of the Guideline, it was not a “change in controlling law” that would entitle Rozier to relief on a § 2255 claim. In its prior decision in Rozier’s appeal, the Eleventh Circuit had relied on the residual clause in affirming the sentence. Because there was no intervening decision contrary to its prior ruling, the Eleventh Circuit was bound by its earlier ruling.
[Dissenting, Judge Hill stated: “I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.”]
In 2001, Rozier was sentenced as a career offender. His career offender status was based in part on a prior conviction for battery on a police officer in violation of Fla. Stat. § 784.07(2)(b). Years after his sentence was affirmed on appeal, the Supreme Court decided Johnson, in which it held that, under the “elements clause” of the career offender guideline, a Florida felony battery did not qualify as a predicate offense. Johnson did not reach whether the offense qualified under the Guideline’s “residual clause.”
The Court recognized that Johnson is retroactively applicable. However, because Johnson did not reach whether a Florida battery qualified as a predicate offense under the “residual clause” of the Guideline, it was not a “change in controlling law” that would entitle Rozier to relief on a § 2255 claim. In its prior decision in Rozier’s appeal, the Eleventh Circuit had relied on the residual clause in affirming the sentence. Because there was no intervening decision contrary to its prior ruling, the Eleventh Circuit was bound by its earlier ruling.
[Dissenting, Judge Hill stated: “I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.”]
Friday, November 16, 2012
Berry: FSA does not apply to defendants sentenced pre-FSA
In U.S. v. Berry, No. 12-11150 (Nov. 14, 2012), the Court held that a defendant sentenced in 2002, prior to the effective date of the Fair Sentencing Act (FSA), was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Berry was subject to a statutory mandatory minimum life sentence. Consequently, the Court found, Amendment 750 had no effect on his Guideline range or sentence.
The Court recognized that the FSA, which became effective August 3, 2010, lowered the statutory minimum penalties for crack cocaine offenses. But noting that the FSA is not a Guidelines amendment but a statutory change by Congress, the Court held that the FSA cannot serve as a basis for a § 3582(c)(2) reduction.
The Court added that even assuming that an FSA claim could be brought in a § 3582(c)(2) motion, the claim still fails. The Court explained that the savings clause, 1 U.S.C. § 109, precludes extinguishment of the sentence Berry received in 2002. The Court distinguished the Supreme Court’s decision in Dorsey v. U.S., pointing out that it only held that defendants sentenced after the effective date of the FSA would be subject to the reduced mandatory minimums for crack cocaine offenders. Dorsey did not address defendants sentenced, like Berry, before the FSA took effect.
Berry was subject to a statutory mandatory minimum life sentence. Consequently, the Court found, Amendment 750 had no effect on his Guideline range or sentence.
The Court recognized that the FSA, which became effective August 3, 2010, lowered the statutory minimum penalties for crack cocaine offenses. But noting that the FSA is not a Guidelines amendment but a statutory change by Congress, the Court held that the FSA cannot serve as a basis for a § 3582(c)(2) reduction.
The Court added that even assuming that an FSA claim could be brought in a § 3582(c)(2) motion, the claim still fails. The Court explained that the savings clause, 1 U.S.C. § 109, precludes extinguishment of the sentence Berry received in 2002. The Court distinguished the Supreme Court’s decision in Dorsey v. U.S., pointing out that it only held that defendants sentenced after the effective date of the FSA would be subject to the reduced mandatory minimums for crack cocaine offenders. Dorsey did not address defendants sentenced, like Berry, before the FSA took effect.
Tuesday, November 13, 2012
Burton: Client may have ultimate authority to call witnesses
In Burton v. Commissioner, Alabama Dep’t of Corrections, No. 10-12108 (Nov. 7, 2012), the Court denied habeas relief to an Alabama death row inmate.
At the penalty phase of Burton’s murder trial, contradicting the position of his defense counsel stated on the record, Burton asked the trial judge to have counsel call two of his accomplices. These two witnesses not only provided no mitigating evidence, but they opened the door for cross-examination that allowed the State to introduce aggravating evidence. The jury sentenced Burton to death, and the Alabama courts affirmed.
In federal habeas proceedings, Burton argued that the Alabama trial judge erred when he allowed Burton to override the decision of his own defense lawyer, and had the two witnesses testify in the penalty phase. The Court rejected this argument, noting that the United States Supreme Court has not yet decided whether the ultimate authority to call witnesses at trial belongs to counsel or the client. Consequently, the state trial judge’s ruling that the decision to call witnesses ultimately rests with the client did not contravene clearly established law as determined by the Supreme Court – the standard for habeas relief under AEDPA.
At the penalty phase of Burton’s murder trial, contradicting the position of his defense counsel stated on the record, Burton asked the trial judge to have counsel call two of his accomplices. These two witnesses not only provided no mitigating evidence, but they opened the door for cross-examination that allowed the State to introduce aggravating evidence. The jury sentenced Burton to death, and the Alabama courts affirmed.
In federal habeas proceedings, Burton argued that the Alabama trial judge erred when he allowed Burton to override the decision of his own defense lawyer, and had the two witnesses testify in the penalty phase. The Court rejected this argument, noting that the United States Supreme Court has not yet decided whether the ultimate authority to call witnesses at trial belongs to counsel or the client. Consequently, the state trial judge’s ruling that the decision to call witnesses ultimately rests with the client did not contravene clearly established law as determined by the Supreme Court – the standard for habeas relief under AEDPA.
Wednesday, November 07, 2012
Bellaizac-Hurttado: Drug Trafficking Not a Violation of Customary International Law
In U.S. v. Bellaizac-Hurtado, No. 11-14049 (Nov. 6, 2012), the Court reversed convictions for cocaine trafficking offenses in violation of 46 U.S.C. §§ 70503(a), 70606; 21 U.S.C. § 960(b)(1)(B), that occurred in the territorial waters of Panama. The Court held that Congress cannot constitutionally proscribe such drug trafficking offenses under its Article I power to “define and punish . . . Offences against the Law of Nations.”
The Court explained that the power to “define” offenses does not give Congress the power to “create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.” The Court held that offenses against the law of nations means offenses under customary international law. The Court noted that it need not decide whether the power to “define” offenses changes with the evolution of customary international law, because drug trafficking was not a violation at the time of the Founding, and is not a violation today – noting that a number of countries’s economies are “dependent on the drug trade,”contrasting the international community’s treatment of genocide, and pointing out that the International Criminal Court does not have jurisdiction over drug trafficking.
[Judge Barkett, concurring, would have held that an offense is only “against the Law of Nations” if it is subject to “universal jurisdiction” – which, she found, drug trafficking is not].
The Court explained that the power to “define” offenses does not give Congress the power to “create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.” The Court held that offenses against the law of nations means offenses under customary international law. The Court noted that it need not decide whether the power to “define” offenses changes with the evolution of customary international law, because drug trafficking was not a violation at the time of the Founding, and is not a violation today – noting that a number of countries’s economies are “dependent on the drug trade,”contrasting the international community’s treatment of genocide, and pointing out that the International Criminal Court does not have jurisdiction over drug trafficking.
[Judge Barkett, concurring, would have held that an offense is only “against the Law of Nations” if it is subject to “universal jurisdiction” – which, she found, drug trafficking is not].
Monday, November 05, 2012
Lawrence: Deference to Florida Competency determination
In Lawrence v. Sec. Dep’t of Corrections, No. 10-13862 (Oct. 30, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder. The Court held that, under AEDPA’s deferential standard of review, the Florida courts did not unreasonably determine that, despite suggestions that the defendant was experiencing "hallucinations" during the trial, he was competent to stand trial, pointing inter alia to evidence that the defendant was merely "having a bout with his conscience."
Wednesday, October 24, 2012
Evans: Florida death penalty procedure still constitutional
In Evans v. Sec., Fla. Dep’t of Corrections, No 11-14498 (Oct. 23, 2012), the Court, reversing the district court, held that Florida’s rules allowing the imposition of the death sentence by a judge, after giving “great weight” to a jury’s advisory sentence of death, did not violate the Sixth Amendment right to jury trial, and therefore was not a basis for a grant of habeas relief.
The Court noted that in Ring v. Arizona, the Supreme Court, though finding Arizona’s judge-only procedure of imposing the death penalty unconstitutional, described Florida’s system as a “hybrid,” because the jury renders an advisory verdict but the judge makes the ultimate sentencing determination. The Court interpreted the Supreme Court’s description of Florida’s procedure as a “hybrid” as having left open the issue of its constitutionality. The Court noted that the Supreme Court, in Hildwin v. Florida, a decision predating Ring, upheld the constitutionality of Florida’s procedure. Because only the Supreme Court can overrule one of its decisions, the Court found that Florida’s procedure was not unconstitutional.
The Court also rejected the argument that defense counsel was ineffective for failing to call seven potential witnesses at Evans’s trial, finding that the Florida Supreme Court did not unreasonably reject this claim.
The Court noted that in Ring v. Arizona, the Supreme Court, though finding Arizona’s judge-only procedure of imposing the death penalty unconstitutional, described Florida’s system as a “hybrid,” because the jury renders an advisory verdict but the judge makes the ultimate sentencing determination. The Court interpreted the Supreme Court’s description of Florida’s procedure as a “hybrid” as having left open the issue of its constitutionality. The Court noted that the Supreme Court, in Hildwin v. Florida, a decision predating Ring, upheld the constitutionality of Florida’s procedure. Because only the Supreme Court can overrule one of its decisions, the Court found that Florida’s procedure was not unconstitutional.
The Court also rejected the argument that defense counsel was ineffective for failing to call seven potential witnesses at Evans’s trial, finding that the Florida Supreme Court did not unreasonably reject this claim.
Wednesday, October 03, 2012
Griffin: Questioning is not a Fourth Amendment event
In U.S. v. Griffin, No. 11-15558 (Oct. 2, 2012), the Court reversed the district court’s grant of a motion to suppress, finding that a constitutionally valid stop and frisk did not become unreasonable when the officer asked some brief questions unrelated to the reason for the stop and the purpose of the frisk.
Responding to a 911 call, a Jacksonville police officer arrived at a store. The security guard pointed to a man walking quickly away as a person who’d attempted to steal some clothing. The officer followed the person, Griffin, who continued to look over his shoulder and walk briskly away. The officer told him to stop. Griffin continued to walk away. The officer stopped Griffin, and frisked him to ensure his own safety.
During the frisk, the officer felt what he believed were C-cell batteries in Griffin’s back pocket. He did not reach into the pocket but asked “Hey, what’s in your pockets? Why do you have batteries.” Griffin responded that the items were shotgun shells and not batteries. The officer asked Griffin if he had ever been to prison. Griffin answered: “yes.” After the officer informed him that it was illegal for felons to possess weapons or ammunition, Griffin began to flee. The officer arrested him. Griffin was charged with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).
The Court noted that the initial stop of Griffin was permissible, because the officer reasonably suspected that Griffin had attempted to steal some clothing.
The Court rejected the argument that the frisk was unjustified. The Court noted that the officer was alone, in a high crime area, had not been told anything about Griffin other than he tried to steal some item of clothing. Griffin acted evasively and refused to obey the command that he stop. The officer had not finished investigating the alleged attempted theft. For these reasons, the frisk was consistent with Terry v. Ohio and its progeny. The frisk did not violate Minnesota v. Dickerson, because the officer did not continue an exploration of the pocket after feeling the items in the pocket. The officer did not reach into the pocket, but instead asked Griffin why he was carrying batteries.
The Court rejected the district court’s conclusion that the questioning of Griffin about the items in his back pocket violated the Fourth Amendment because it was not reasonably related to the circumstances that justified the stop. The Court stated that “unrelated questions posed during a valid Terry s top do not create a Fourth Amendment problem unless they measurably extend the duration of the stop. This is because such questions, absent a prolonged detention, do not constitute a discrete Fourth Amendment event.”
The Court found that the exchange between the officer and Griffin did not last more than 30 seconds. This “brief” questioning did not transform the stop into an unconstitutionally prolonged seizure.
Responding to a 911 call, a Jacksonville police officer arrived at a store. The security guard pointed to a man walking quickly away as a person who’d attempted to steal some clothing. The officer followed the person, Griffin, who continued to look over his shoulder and walk briskly away. The officer told him to stop. Griffin continued to walk away. The officer stopped Griffin, and frisked him to ensure his own safety.
During the frisk, the officer felt what he believed were C-cell batteries in Griffin’s back pocket. He did not reach into the pocket but asked “Hey, what’s in your pockets? Why do you have batteries.” Griffin responded that the items were shotgun shells and not batteries. The officer asked Griffin if he had ever been to prison. Griffin answered: “yes.” After the officer informed him that it was illegal for felons to possess weapons or ammunition, Griffin began to flee. The officer arrested him. Griffin was charged with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).
The Court noted that the initial stop of Griffin was permissible, because the officer reasonably suspected that Griffin had attempted to steal some clothing.
The Court rejected the argument that the frisk was unjustified. The Court noted that the officer was alone, in a high crime area, had not been told anything about Griffin other than he tried to steal some item of clothing. Griffin acted evasively and refused to obey the command that he stop. The officer had not finished investigating the alleged attempted theft. For these reasons, the frisk was consistent with Terry v. Ohio and its progeny. The frisk did not violate Minnesota v. Dickerson, because the officer did not continue an exploration of the pocket after feeling the items in the pocket. The officer did not reach into the pocket, but instead asked Griffin why he was carrying batteries.
The Court rejected the district court’s conclusion that the questioning of Griffin about the items in his back pocket violated the Fourth Amendment because it was not reasonably related to the circumstances that justified the stop. The Court stated that “unrelated questions posed during a valid Terry s top do not create a Fourth Amendment problem unless they measurably extend the duration of the stop. This is because such questions, absent a prolonged detention, do not constitute a discrete Fourth Amendment event.”
The Court found that the exchange between the officer and Griffin did not last more than 30 seconds. This “brief” questioning did not transform the stop into an unconstitutionally prolonged seizure.
Tuesday, September 18, 2012
Holsey: Affirming denial of habeas relief where postconviction evidence was largely cumulative
In Holsey v. Warden, No. 09-14257 (Sept. 13, 2012), the Court (2-1) (Barkett, J., dissenting) denied habeas relief to a Georgia death row inmate convicted of a 1995 murder.
The Court rejected the argument that the Georgia Supreme Court unreasonably determined that the additional mitigating circumstances presented at post-conviction proceedings were “largely cumulative” of the evidence presented at trial. The Court found that at his initial trial, Holsey put mitigating evidence of his own “limited intelligence.” Although in collateral proceedings he later put on evidence of “borderline mental retardation,” most of the evidence in the proceedings was cumulative of earlier-presented evidence. Similarly, while Holsey presented more details of his abusive childhood at his collateral proceedings, the jury at the original sentencing “had heard about his troubled, abusive upbringing too.”
The Court rejected the argument that the Georgia Supreme Court unreasonably determined that the additional mitigating circumstances presented at post-conviction proceedings were “largely cumulative” of the evidence presented at trial. The Court found that at his initial trial, Holsey put mitigating evidence of his own “limited intelligence.” Although in collateral proceedings he later put on evidence of “borderline mental retardation,” most of the evidence in the proceedings was cumulative of earlier-presented evidence. Similarly, while Holsey presented more details of his abusive childhood at his collateral proceedings, the jury at the original sentencing “had heard about his troubled, abusive upbringing too.”
Thursday, September 13, 2012
Duboc: Treaty does not create rights for private persons
In U.S. v. Duboc, No. 11-15133 (Sept. 11, 2012), the Court affirmed the amendment of an existing criminal forfeiture order that ordered the forfeiture of two condos in Thailand in 2011, 12 years after the initial order of forfeiture.
The Court rejected Duboc’s argument that the government failed to prove that he used the proceeds of illegal activity to purchase the Thailand condos. Duboc argued that only 2.4% of the proceeds of his drug trafficking involved importation into the United States. The Court stated that even assuming this was accurate, it does not show that the Thailand condos were not purchased with the proceeds of the crimes of conviction.
The Court also rejected Duboc’s statute of limitations argument, ruling that because the properties were outside the United States, the limitations period had not begin to run. The Court also rejected Duboc’s laches argument, pointing out that the forfeiture statute allows amendment "at any time."
The Court also rejected the argument that the delay in the government’s enforcement of its rights against the Thai condos violated Due Process, noting that Duboc made no showing of prejudice. The Court also rejected Duboc’s attempt to rely on the Mutual Legal Assistance Treaty between Thailand and the United States, holding that this treaty, which involved mutual assistance in law enforcement, did not create rights for private persons.
The Court rejected Duboc’s argument that the government failed to prove that he used the proceeds of illegal activity to purchase the Thailand condos. Duboc argued that only 2.4% of the proceeds of his drug trafficking involved importation into the United States. The Court stated that even assuming this was accurate, it does not show that the Thailand condos were not purchased with the proceeds of the crimes of conviction.
The Court also rejected Duboc’s statute of limitations argument, ruling that because the properties were outside the United States, the limitations period had not begin to run. The Court also rejected Duboc’s laches argument, pointing out that the forfeiture statute allows amendment "at any time."
The Court also rejected the argument that the delay in the government’s enforcement of its rights against the Thai condos violated Due Process, noting that Duboc made no showing of prejudice. The Court also rejected Duboc’s attempt to rely on the Mutual Legal Assistance Treaty between Thailand and the United States, holding that this treaty, which involved mutual assistance in law enforcement, did not create rights for private persons.
Wednesday, September 12, 2012
Dortch: No plain error in constructive amendment
In U.S. v. Dortch, No. 10-14772 (Sept. 11, 2012), the Court affirmed convictions for unlawful possession of firearms by a convicted felon, possession of marijuana with intent to distribute, and use of a firearm during a drug-trafficking offense.
During the trial, the district court did not allow the government to introduce evidence of some of Dortch’s prior convictions, because they were too old or too prejudicial. However, for deliberations, the jury was given an unredacted copy of the indictment, which listed the prior offenses. The Court held that the error was harmless, because Dortch stipulated that he was a convicted felon, and the evidence supporting the convictions was "overwhelming." In addition, the district court instructed the jury that the indictment was not evidence.
On plain error review, the Court rejected the argument that the district court committed reversible error because it constructively amended the indictment when it instructed the jury that it could convict Dortch of firearm possession without specifying that it must find that he possessed the specific firearms identified in the indictment. The Court noted that there was no Supreme Court or Eleventh Circuit precedent holding that a constructive amendment occurs when a district court instructs the jury that it may convict for possession of any firearm. The Court therefore found that it "need not address whether a constructive amendment amounts to per se reversible error when the defendant fails to object at trial, because even if we assume the district court erred, the error was not plain."
Finally, the Court rejected the argument that the district court abused its discretion when it excluded evidence that Dortch was acquitted of state charges relating to the same drug transactions at issue. "Judgments of acquittal are hearsay."
During the trial, the district court did not allow the government to introduce evidence of some of Dortch’s prior convictions, because they were too old or too prejudicial. However, for deliberations, the jury was given an unredacted copy of the indictment, which listed the prior offenses. The Court held that the error was harmless, because Dortch stipulated that he was a convicted felon, and the evidence supporting the convictions was "overwhelming." In addition, the district court instructed the jury that the indictment was not evidence.
On plain error review, the Court rejected the argument that the district court committed reversible error because it constructively amended the indictment when it instructed the jury that it could convict Dortch of firearm possession without specifying that it must find that he possessed the specific firearms identified in the indictment. The Court noted that there was no Supreme Court or Eleventh Circuit precedent holding that a constructive amendment occurs when a district court instructs the jury that it may convict for possession of any firearm. The Court therefore found that it "need not address whether a constructive amendment amounts to per se reversible error when the defendant fails to object at trial, because even if we assume the district court erred, the error was not plain."
Finally, the Court rejected the argument that the district court abused its discretion when it excluded evidence that Dortch was acquitted of state charges relating to the same drug transactions at issue. "Judgments of acquittal are hearsay."
Monday, September 10, 2012
Johnson: Passenger must direct risk to be enhanced for driver's recklessness
In U.S. v. Johnson, No. 11-13621 (Sept. 10, 2012), the Court reversed and remanded for resentencing a sentence enhancement under U.S.S.G. 3C1.2, which provides for a two-level enhancement if the defendant "recklessly created a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer."
The defendants participated in the armed robbery of a CVS pharmacy in Atlanta. Police arrived during the robbery. Two defendants hopped into a stolen 1995 Honda, one the driver, the other the passenger. They fled police, ignoring traffic signals, and causing other cars to make evasive maneuvers to avoid being hit. Police backed off pursuit because of safety concerns. Both defendants were ultimately apprehended and convicted.
The Court held that the district court erred in imposing the § 3C1.2 enhancement on the passenger of Honda based on a mere finding that the risk created by the driver was "reasonably foreseeable" to the passenger. The Court noted that a district court must find that a defendant "actively caused or procured the reckless behavior at issue."
The Court rejected the government’s argument that one could infer a plan of escape from the premeditation of the robbery. "It is likely that [the two defendants] did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way."
The Court noted the government’s argument that the passenger must have been aware of the need to "ram a police car to escape" from the fact that police were on the scene when he got in the getaway car. But the district court did not rely on this fact in its § 3C1.2 determination.
The Court rejected the government’s argument that the fact that Johnson fled on foot once the car crashed into a pole shows that he sought to escape during the high-speed chase. The Court noted that the flight on foot did not indicate whether the passenger played any active supporting role in the reckless car-flight.
The Court remanded and instructed for the district to "reopen the record" and "turn its eye to the robbery scene" when the defendants exited the CVS store, considering where the police and their cars were situated.
The defendants participated in the armed robbery of a CVS pharmacy in Atlanta. Police arrived during the robbery. Two defendants hopped into a stolen 1995 Honda, one the driver, the other the passenger. They fled police, ignoring traffic signals, and causing other cars to make evasive maneuvers to avoid being hit. Police backed off pursuit because of safety concerns. Both defendants were ultimately apprehended and convicted.
The Court held that the district court erred in imposing the § 3C1.2 enhancement on the passenger of Honda based on a mere finding that the risk created by the driver was "reasonably foreseeable" to the passenger. The Court noted that a district court must find that a defendant "actively caused or procured the reckless behavior at issue."
The Court rejected the government’s argument that one could infer a plan of escape from the premeditation of the robbery. "It is likely that [the two defendants] did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way."
The Court noted the government’s argument that the passenger must have been aware of the need to "ram a police car to escape" from the fact that police were on the scene when he got in the getaway car. But the district court did not rely on this fact in its § 3C1.2 determination.
The Court rejected the government’s argument that the fact that Johnson fled on foot once the car crashed into a pole shows that he sought to escape during the high-speed chase. The Court noted that the flight on foot did not indicate whether the passenger played any active supporting role in the reckless car-flight.
The Court remanded and instructed for the district to "reopen the record" and "turn its eye to the robbery scene" when the defendants exited the CVS store, considering where the police and their cars were situated.
Franklin: Exigent circumstances justifies search
In U.S. v. Franklin, No. 11-10555 (Sept. 7, 2012), the Court held that because of exigent circumstances, law enforcement did not violate a person’s Fourth Amendment rights when they entered his home without a warrant and seized rifles and sawed off shotguns.
After responding to a request from a Florida Probation Officer to assist him at Franklin’s home, a deputy sheriff went to the back of the house and saw several firearms in plain view through a rear window. There was another person in the house. Franklin ultimately emerged from the house to surrender. The police entered the house where they seized the rifles and shotguns.
The Court held that the law enforcement agents could reasonably have believed that the person inside the home could remove the rifles and shotguns before a search warrant could be obtained. Therefore, there was no Fourth Amendment violation.
After responding to a request from a Florida Probation Officer to assist him at Franklin’s home, a deputy sheriff went to the back of the house and saw several firearms in plain view through a rear window. There was another person in the house. Franklin ultimately emerged from the house to surrender. The police entered the house where they seized the rifles and shotguns.
The Court held that the law enforcement agents could reasonably have believed that the person inside the home could remove the rifles and shotguns before a search warrant could be obtained. Therefore, there was no Fourth Amendment violation.
Monday, August 27, 2012
Shelton: AEDPA precludes holding statute unconstitutional
In Shelton v. Sec., Dep’t of Corrections, No. 11-13515 (Aug. 24, 2012), the Court reversed the grant of habeas relief to a Florida inmate convicted of cocaine trafficking, and sentenced to 18 years in jail.
The district court held that the Florida statute violated Due Process, because the law partially eliminated an element of mens rea – under the Florida statute, an offender must be aware of the presence of an unlawful substance but need not be aware of the substance’s unlawful nature. Reversing, the Court held that this ruling was not permitted by AEDPA, which allows a federal court to reverse a state court’s determination only if that state court determination unreasonably applies clearly established Supreme Court precedent. Here, the Supreme Court has not held that a statute with only a partial mens rea violates Due Process. The Court expressed no view on the underlying constitutional question – only that the issue was "novel" and could be the basis for habeas relief.
The district court held that the Florida statute violated Due Process, because the law partially eliminated an element of mens rea – under the Florida statute, an offender must be aware of the presence of an unlawful substance but need not be aware of the substance’s unlawful nature. Reversing, the Court held that this ruling was not permitted by AEDPA, which allows a federal court to reverse a state court’s determination only if that state court determination unreasonably applies clearly established Supreme Court precedent. Here, the Supreme Court has not held that a statute with only a partial mens rea violates Due Process. The Court expressed no view on the underlying constitutional question – only that the issue was "novel" and could be the basis for habeas relief.
Ponticelli: Insufficient evidence of ineffectiveness
In Ponticelli v. Sec., Florida Dep’t of Corrections, No. 11-11966 (Aug. 16, 2012), the Court (2-1) affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1987 murder.
The Court found that the Florida Supreme Court did not unreasonably reject Ponticelli’s claim that his counsel’s deficient performance during the penalty phase of his state trial did not prejudice him. The Court agreed that any new mental health testimony would have been "cumulative" to testimony the jury heard. The Court also agreed that evidence of cocaine abuse would have done more harm than good, as the state could have elicited testimony that Ponticelli had a history of drug abuse, but had quit on one occasion for an extended period of time, only to return to a habit he knew was evil.
The Court found that the Florida Supreme Court did not unreasonably reject Ponticelli’s claim that his counsel’s deficient performance during the penalty phase of his state trial did not prejudice him. The Court agreed that any new mental health testimony would have been "cumulative" to testimony the jury heard. The Court also agreed that evidence of cocaine abuse would have done more harm than good, as the state could have elicited testimony that Ponticelli had a history of drug abuse, but had quit on one occasion for an extended period of time, only to return to a habit he knew was evil.
Wednesday, August 22, 2012
Kuenzel: Insufficient proof of "actual innocence"
In Kuenzel v. Commissioner, Ala. Dep’t of Corrections, No. 10-10283 (Aug. 17, 2012), the Court held that the habeas petitioner, sentenced to death for a 1987 murder, failed to present sufficient evidence of "actual innocence" and therefore could not overcome the state procedural bar to his federal habeas claims.
The Court noted that evidence of actual innocence need not establish "conclusive exoneration," but it must do more than strengthen a defense if offered at trial: it must show that it is more likely than not that no reasonable juror would have convicted in light of the new evidence. The Court, after reviewing Kuenzel’s new evidence, concluded that he had not met this "heavy burden."
The Court noted that evidence of actual innocence need not establish "conclusive exoneration," but it must do more than strengthen a defense if offered at trial: it must show that it is more likely than not that no reasonable juror would have convicted in light of the new evidence. The Court, after reviewing Kuenzel’s new evidence, concluded that he had not met this "heavy burden."
Thursday, August 16, 2012
Mathurin: Plea Negotiations do not toll Speedy Trial Act
In U.S. v. Mathurin, No. 11-13211 (Aug. 15, 2011), the Court held that the government violated the Speed Trial Act when it failed to file an indictment within thirty days from the date on which the defendant was arrested -- which in Mathurin’s case was the date on which he was transferred from juvenile to adult status.
The government claimed that the thirty-day period was tolled because during this period the parties were engaged in plea negotiations. The Court rejected this argument, pointing that 18 U.S.C. § 3161(h)(1)’s tolls the period during which a court considers a plea agreement, but does not automatically toll periods during which plea negotiations are happening. The Court declined to include plea negotiations within the "ends of justice" catch-all of the Act, noting that plea negotiations are controlled by the parties, not the court, and this catch-all was aimed at delay attributable to court inaction. The Court rejected the argument that Mathurin waived the Speedy Trial claim because he failed to raise it prior to the filing fo the indictment. The Court noted that the Act only requires the defendant to move for dismissal prior to trial, or entry of a guilty plea. The Court rejected the argument that defense counsel "sought the pre-indictment delay," noting that a party could not control the running of the act, which is designed to advance the public’s interest in speedy trials.
The Court remanded the case to the district court for a determination whether the indictment should be dismissed with, or without, prejudice.
The government claimed that the thirty-day period was tolled because during this period the parties were engaged in plea negotiations. The Court rejected this argument, pointing that 18 U.S.C. § 3161(h)(1)’s tolls the period during which a court considers a plea agreement, but does not automatically toll periods during which plea negotiations are happening. The Court declined to include plea negotiations within the "ends of justice" catch-all of the Act, noting that plea negotiations are controlled by the parties, not the court, and this catch-all was aimed at delay attributable to court inaction. The Court rejected the argument that Mathurin waived the Speedy Trial claim because he failed to raise it prior to the filing fo the indictment. The Court noted that the Act only requires the defendant to move for dismissal prior to trial, or entry of a guilty plea. The Court rejected the argument that defense counsel "sought the pre-indictment delay," noting that a party could not control the running of the act, which is designed to advance the public’s interest in speedy trials.
The Court remanded the case to the district court for a determination whether the indictment should be dismissed with, or without, prejudice.
Tuesday, August 14, 2012
Broughton: Insurance Fraud convictions affirmed
In U.S. v. Broughton, No. 10-15527 (Aug. 10, 2012), the Court affirmed convictions for fraud and money-laundering in connection with a scheme involving fraudulent capitalization of purported insurance companies.
The Court rejected the argument that the statute of limitations barred the prosecution. The Court pointed out that, pursuant to 18 U.S.C. § 3292, the district court had suspended the running of the statute of limitations because the government had filed a notice that an official request for evidence had been made from a foreign country. The Court rejected the argument that the statute of limitations should not have been suspended because the government knew of the conspiracy before sending its official requests to Costa Rica and Panama, or that the conspiracy had terminated before the Government requested the statute of limitations be tolled, or that none of the evidence requested was needed at trial. None of these matters were needed to satisfy the conditions of § 3292.
The Court also rejected the argument that even with a suspension of the limitations period, the criminal action was untimely because it was filed more than five years after the completion of the conspiracy. The Court pointed out that within the limitations period Broughton wrote "placatory" letters to victim-investors, urging "continued patience" with what was a fraudulent scheme. This was a "continuing execution of a conspiracy to defraud." Alternatively, the Court found that if the suspension time was factored in, the indictment was timely.
The Court rejected challenges to the sufficiency of the evidence, pointing to the evidence of a fraudulent conspiracy, and to the fact that the jury could have disbelieved Broughton when he testified in his defense at trial. Finally, the Court rejected challenges to the sufficiency of the evidence supporting money-laundering convictions, noting evidence that cash was transported to the Cayman Islands and stuffed under a mattress.
The Court rejected the argument that the statute of limitations barred the prosecution. The Court pointed out that, pursuant to 18 U.S.C. § 3292, the district court had suspended the running of the statute of limitations because the government had filed a notice that an official request for evidence had been made from a foreign country. The Court rejected the argument that the statute of limitations should not have been suspended because the government knew of the conspiracy before sending its official requests to Costa Rica and Panama, or that the conspiracy had terminated before the Government requested the statute of limitations be tolled, or that none of the evidence requested was needed at trial. None of these matters were needed to satisfy the conditions of § 3292.
The Court also rejected the argument that even with a suspension of the limitations period, the criminal action was untimely because it was filed more than five years after the completion of the conspiracy. The Court pointed out that within the limitations period Broughton wrote "placatory" letters to victim-investors, urging "continued patience" with what was a fraudulent scheme. This was a "continuing execution of a conspiracy to defraud." Alternatively, the Court found that if the suspension time was factored in, the indictment was timely.
The Court rejected challenges to the sufficiency of the evidence, pointing to the evidence of a fraudulent conspiracy, and to the fact that the jury could have disbelieved Broughton when he testified in his defense at trial. Finally, the Court rejected challenges to the sufficiency of the evidence supporting money-laundering convictions, noting evidence that cash was transported to the Cayman Islands and stuffed under a mattress.
Friday, August 03, 2012
Blanco: Counsel knew of plea deals
In Blanco v. Sec., Fla. Dep’t of Corrections, No. 11-11993 (July 31, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1982 murder.
The Court rejected the argument that the defendant’s appointed mental expert was incompetent when he testified on the defendant’s behalf. The Court pointed out that at the penalty phase the defendant did not ask to halt the hearing and grant a new proceeding based on his psychiatrist’s incompetence.
The Court also rejected the claim that counsel was ineffective for failing to inform the defendant of an offer that he plead guilty and received a life sentence, with a possibility of parole after 25 years. The Court found that the record was replete with evidence that Blanco understood the plea deal. In addition, the plea deal required Blanco to admit to the killing, which he was unwilling to do.
Turning to Blanco’s claim of a Brady violation, the Court disagreed with the district court that this claim should be evaluated under the demanding standard for claims raised in "second or successive" habeas petitions, because, although Blanco raised it in his second § 2254 petition, and had not raised it in his first § 2254 petition, his first § 2254 petition had been successful. Therefore, the current § 2254 petition was the first to challenge the intervening judgment. On the merits, though, the Brady claim failed. Blanco claimed that the State failed to disclose the plea deals it had with co-defendants. The Court found that the record showed that Blanco’s counsel was aware of the deals.
The Court rejected the argument that the defendant’s appointed mental expert was incompetent when he testified on the defendant’s behalf. The Court pointed out that at the penalty phase the defendant did not ask to halt the hearing and grant a new proceeding based on his psychiatrist’s incompetence.
The Court also rejected the claim that counsel was ineffective for failing to inform the defendant of an offer that he plead guilty and received a life sentence, with a possibility of parole after 25 years. The Court found that the record was replete with evidence that Blanco understood the plea deal. In addition, the plea deal required Blanco to admit to the killing, which he was unwilling to do.
Turning to Blanco’s claim of a Brady violation, the Court disagreed with the district court that this claim should be evaluated under the demanding standard for claims raised in "second or successive" habeas petitions, because, although Blanco raised it in his second § 2254 petition, and had not raised it in his first § 2254 petition, his first § 2254 petition had been successful. Therefore, the current § 2254 petition was the first to challenge the intervening judgment. On the merits, though, the Brady claim failed. Blanco claimed that the State failed to disclose the plea deals it had with co-defendants. The Court found that the record showed that Blanco’s counsel was aware of the deals.
Kormondy: No Conflict of Interest by Trial Counsel
In Kormondy v. Sec., Fla. Dep’t of Corrections, No. 11-15001 (July 31, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a July 1993 murder.
The Court rejected the argument that Kormondy’s trial lawyer should have withdrawn because she had been a high school classmate of the murder victim, finding no evidence that the lawyer was "actively representing conflicting interests."
The Court also rejected the argument that, at the penalty phase, counsel was ineffective for failing to put on evidence of the defendant’s impoverished upbringing and years of alcohol and drug abuse, in addition to evidence that he was not the "shooter." The Court noted that the aggravating factors were not weak (the murder victim’s wife was raped as he was killed), and evidence of drug addition is a "two-edged" sword.
Finally, the trial court did not violate Kormondy’s constitutional rights when it sustained a prosecution objection to a question of the wife of the murder victim. The Court took judicial notice of the proposition that courts uniformly require a cross-examiner to put a question to the witness and obtain an answer before confronting the witness with a previous inconsistent answer. This did not occur at Kormondy’s trial.
The Court rejected the argument that Kormondy’s trial lawyer should have withdrawn because she had been a high school classmate of the murder victim, finding no evidence that the lawyer was "actively representing conflicting interests."
The Court also rejected the argument that, at the penalty phase, counsel was ineffective for failing to put on evidence of the defendant’s impoverished upbringing and years of alcohol and drug abuse, in addition to evidence that he was not the "shooter." The Court noted that the aggravating factors were not weak (the murder victim’s wife was raped as he was killed), and evidence of drug addition is a "two-edged" sword.
Finally, the trial court did not violate Kormondy’s constitutional rights when it sustained a prosecution objection to a question of the wife of the murder victim. The Court took judicial notice of the proposition that courts uniformly require a cross-examiner to put a question to the witness and obtain an answer before confronting the witness with a previous inconsistent answer. This did not occur at Kormondy’s trial.
Liberse: Defendant Eligible for Amendment 750 reduction
In U.S. v. Liberse, No. 12-10243 (July 30, 2012), the Court held that a crack cocaine offender was eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing Guidelines, even though the defendant had been subject to a mandatory minimum punishment.
Liberse’s guideline range for his crack cocaine offense, at a criminal history of IV, was 121-151 months. The mandatory minimum punishment of 120 months therefore did not directly affect his sentence. After the sentencing court imposed a 121-month term of incarceration, the government moved for a Rule 35(b) "substantial assistance" sentence reduction. The district court reduced the sentence to 97 months. Thereafter, Liberse sought a reduction pursuant to Amendment 750. The district court denied the motion, reasoning that Liberse remained subject to the same 120-month statutory mandatory punishment, which the Sentencing Commission lacked authority to reduce.
Reversing, the Court noted that Liberse was not sentenced based on the 120-month mandatory minimum, but at the low end of his original guideline range of 121-151 months.
The Court noted that it was not clear, after the Fair Sentencing Act, what the statutory mandatory minimum was. If the FSA applied to Liberse – he was sentenced before the FSA took effect, so Dorsey v. United States (FSA applies to defendants sentenced post-FSA) does not apply to him – his mandatory minimum would be 5 years, but if the FSA did not apply, his mandatory minimum would remain 10 years. Regardless of whether the FSA applies, Amendment 750 lowers Liberse’s sentencing range. Further, because Liberse received a Rule 35(b) substantial assistance reduction, the Guidelines provide that a comparable reduction based on a retroactive amendment "may be appropriate."
The Court left it to the district court to decide in the first instance whether the FSA applied to Liberse, noting that it was considering the same issue in a pending case, U.S. v. Hippolilyte, No. 11-15933.
Liberse’s guideline range for his crack cocaine offense, at a criminal history of IV, was 121-151 months. The mandatory minimum punishment of 120 months therefore did not directly affect his sentence. After the sentencing court imposed a 121-month term of incarceration, the government moved for a Rule 35(b) "substantial assistance" sentence reduction. The district court reduced the sentence to 97 months. Thereafter, Liberse sought a reduction pursuant to Amendment 750. The district court denied the motion, reasoning that Liberse remained subject to the same 120-month statutory mandatory punishment, which the Sentencing Commission lacked authority to reduce.
Reversing, the Court noted that Liberse was not sentenced based on the 120-month mandatory minimum, but at the low end of his original guideline range of 121-151 months.
The Court noted that it was not clear, after the Fair Sentencing Act, what the statutory mandatory minimum was. If the FSA applied to Liberse – he was sentenced before the FSA took effect, so Dorsey v. United States (FSA applies to defendants sentenced post-FSA) does not apply to him – his mandatory minimum would be 5 years, but if the FSA did not apply, his mandatory minimum would remain 10 years. Regardless of whether the FSA applies, Amendment 750 lowers Liberse’s sentencing range. Further, because Liberse received a Rule 35(b) substantial assistance reduction, the Guidelines provide that a comparable reduction based on a retroactive amendment "may be appropriate."
The Court left it to the district court to decide in the first instance whether the FSA applied to Liberse, noting that it was considering the same issue in a pending case, U.S. v. Hippolilyte, No. 11-15933.
Tuesday, July 24, 2012
Smith: Consent to search were police were not acting "flagrantly"
In U.S. v. Smith, No. 10-15929 (July 23, 2012), the Court rejected the challenge by a defendant convicted of distributing child pornography that the police violated his Fourth Amendment rights when they entered and searched his house without a warrant.
The police, suspecting that Smith had child pornography on his laptop consumer, went (without a warrant) to his house in Sebastian, Florida. They knocked loudly on the door. No one answered. A neighbor told them that "Smith was feeling some sort of depression." To ensure Smith’s well-being, the police entered his house through an unlocked sliding glass back door, with guns drawn, pointing down. Smith was laying naked on an inflatable mattress. The police holstered their weapons. Smith asked them to step outside while he got dressed. The police stepped outside, where Smith joined them. The police then discussed whether Smith had child pornography in his residence. Smith offered to show police his laptop. The police followed Smith inside the house, where they saw a computer with an active peer-to-peer program, downloading and uploading child pornography. Smith later that day confessed to possessing child pornography.
Prior to trial, Smith moved to suppress his confession and all evidence seized from his computers as "fruits of the poisonous tree" – the illegal search of his house. The district court denied the motion to suppress.
Affirming, the Court assumed arguendo that the officers’ "welfare check" entry into Smith’s home violated the Fourth Amendment. However, the Court found that the subsequent consent to search was voluntary. The Court recognized that the record did not show how much time elapsed between the entry and the consent. But the intervening circumstances – the fact that the police left the house when Smith asked to get dressed, and that there was no evidence of coercion (although police did not inform Smith that he could refuse consent to a search), indicated that there was no "flagrancy" in the police’s conduct. The Court noted that Smith had presented no evidence to rebut the officers’ claims that they went into the house to check on his welfare. Therefore, the search did not violate the Fourth Amendment.
The police, suspecting that Smith had child pornography on his laptop consumer, went (without a warrant) to his house in Sebastian, Florida. They knocked loudly on the door. No one answered. A neighbor told them that "Smith was feeling some sort of depression." To ensure Smith’s well-being, the police entered his house through an unlocked sliding glass back door, with guns drawn, pointing down. Smith was laying naked on an inflatable mattress. The police holstered their weapons. Smith asked them to step outside while he got dressed. The police stepped outside, where Smith joined them. The police then discussed whether Smith had child pornography in his residence. Smith offered to show police his laptop. The police followed Smith inside the house, where they saw a computer with an active peer-to-peer program, downloading and uploading child pornography. Smith later that day confessed to possessing child pornography.
Prior to trial, Smith moved to suppress his confession and all evidence seized from his computers as "fruits of the poisonous tree" – the illegal search of his house. The district court denied the motion to suppress.
Affirming, the Court assumed arguendo that the officers’ "welfare check" entry into Smith’s home violated the Fourth Amendment. However, the Court found that the subsequent consent to search was voluntary. The Court recognized that the record did not show how much time elapsed between the entry and the consent. But the intervening circumstances – the fact that the police left the house when Smith asked to get dressed, and that there was no evidence of coercion (although police did not inform Smith that he could refuse consent to a search), indicated that there was no "flagrancy" in the police’s conduct. The Court noted that Smith had presented no evidence to rebut the officers’ claims that they went into the house to check on his welfare. Therefore, the search did not violate the Fourth Amendment.
Wednesday, July 11, 2012
Glover: Defendant not eligible for crack Amendment reduction
In U.S. v. Glover, No. 12-10580 (July 11, 2012), the Court held that a defendant was ineligible for a sentence reduction pursuant to Amendment 750 of the Sentencing Guidelines which, effective, November 1, 2011, reduced offense levels for crack cocaine offenses.
The Court rejected the government’s argument that the appeal was untimely, pointing out that Glover’s pro se motion for reconsideration of the district court’s denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) tolled the deadline for filing a notice of appeal.
Turning to the merits, the Court noted that under the Guideline commentary to U.S.S.G. § 1B1.10, a defendant can only receive a sentence reduction based on a Guideline amendment if the amendment "actually lowers the Guideline range." Glover’s original sentence was based on a mandatory minimum that "trumped" the Guidelines range. Therefore he was not eligible for a reduction.
The Court also rejected Glover’s argument that he was eligible for a sentence reduction because his sentence was based on a sentence reduction for "substantial assistance." The Court determined that Glover’s original Guidelines range was the statutory maximum, not the sentence after reduction for substantial assistance. Therefore, the crack cocaine Amendment did not actually lower his Guideline range and make him eligible for a sentence reduction.
The Court rejected the government’s argument that the appeal was untimely, pointing out that Glover’s pro se motion for reconsideration of the district court’s denial of his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) tolled the deadline for filing a notice of appeal.
Turning to the merits, the Court noted that under the Guideline commentary to U.S.S.G. § 1B1.10, a defendant can only receive a sentence reduction based on a Guideline amendment if the amendment "actually lowers the Guideline range." Glover’s original sentence was based on a mandatory minimum that "trumped" the Guidelines range. Therefore he was not eligible for a reduction.
The Court also rejected Glover’s argument that he was eligible for a sentence reduction because his sentence was based on a sentence reduction for "substantial assistance." The Court determined that Glover’s original Guidelines range was the statutory maximum, not the sentence after reduction for substantial assistance. Therefore, the crack cocaine Amendment did not actually lower his Guideline range and make him eligible for a sentence reduction.
Early: Affirming upward sentence variance
In U.S. v. Early, No. 10-15537 (July 11, 2012), the Court affirmed a 210-month sentence on a defendant convicted of robbery of two banks using fake bombs.
The Court noted that the Guidelines range was 79-97 months. The Court nonetheless rejected a substantive reasonableness challenge to the 210-month sentence, pointing out that Early had spent much of his adult life in prison, for "multiple" offenses. The Court also noted that Early’s use of fake bombs created "terror" for tellers and customers. In addition, the sentence was below the 900-month statutory maximum for the offenses.
[Concurring, Martin, J., noted the Eleventh Circuit’s failure to exercise "similar deference" when reviewing sentences in which the district court granted a downward variance.]
The Court noted that the Guidelines range was 79-97 months. The Court nonetheless rejected a substantive reasonableness challenge to the 210-month sentence, pointing out that Early had spent much of his adult life in prison, for "multiple" offenses. The Court also noted that Early’s use of fake bombs created "terror" for tellers and customers. In addition, the sentence was below the 900-month statutory maximum for the offenses.
[Concurring, Martin, J., noted the Eleventh Circuit’s failure to exercise "similar deference" when reviewing sentences in which the district court granted a downward variance.]
Tuesday, July 03, 2012
Sochor: Not Prejudiced by Counsel's Ineffectiveness
In Sochor v. Sec. Dep’t of Corrections, No. 10-14944 (June 27, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1981 murder.
The Court found that even if Sochor’s counsel was ineffective at the penalty phase, Sochor was not prejudiced by this ineffectiveness. The Court noted that the aggravating circumstances were that Sochor chocked his victim to death with his bare hands, causing a slow and painful death. In addition, the murder was in the course of kidnaping. The aggravating circumstances so outweighed the mitigating circumstances not presented regarding Sochor’s impairment at the time of the murder, and his manic depressive personality. Moreover, the jury heard evidence at the penalty phase of Sochor’s severe beatings as a child. Consequently, there was no reasonable probability of a different outcome.
The Court found that even if Sochor’s counsel was ineffective at the penalty phase, Sochor was not prejudiced by this ineffectiveness. The Court noted that the aggravating circumstances were that Sochor chocked his victim to death with his bare hands, causing a slow and painful death. In addition, the murder was in the course of kidnaping. The aggravating circumstances so outweighed the mitigating circumstances not presented regarding Sochor’s impairment at the time of the murder, and his manic depressive personality. Moreover, the jury heard evidence at the penalty phase of Sochor’s severe beatings as a child. Consequently, there was no reasonable probability of a different outcome.
Monday, July 02, 2012
Rojas: Confirming Dorsey on FSA
In U.S. v. Rojas, No 10-14428 (July 2, 2012), the Court, having held the issue in abeyance en banc, held that in light of the Supreme Court’s recent decision in Dorsey v. U.S., the more lenient mandatory minimums of the Fair Sentencing Act apply to all defendants sentenced after August 3, 2010, when the Act took effect. The Court therefore remanded the cases for re-sentencing consistent with Dorsey.
Daniels: Government need not show defendant knew age of minor prostitute
In U.S. v. Daniels, No. 10-14974 (July 2, 2012),
the Court affirmed the convictions and sentence of a defendant convicted of inducing a minor to engage in prostitution in violation of 18 U.S.C. § 2422(b) and transporting an individual in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421-22.
The Court rejected the argument that the mere fact that a person came to work for the defendant as a prostitute did not suffice to show that he “induced” prostitution for purposes of § 2422(b). The Court noted that induce merely means to cause.
On an issue of first impression, the Court held that the jury need not be instructed that, in order to establish a § 2422(b) violation, the government must prove that a defendant knew that a victim had not attained the age of 18 . The Court adopted Justice Alito’s view in his concurring opinion in Flores-Figueroa v. U.S., that context determines whether a mens rea applies to an element of the offense, and the view of six circuits that had addressed the issue. The context here was Congress's protection of minors. “A defendant such as Daniels who lures and encourages children into these activities does so at this own peril, regardless of what the victim says [about her age] or how she appears.”
Turning to sentencing, the Court rejected the argument that it was unreasonable to run Daniels’ sentences consecutive to an undischarged term of 420 months imprisonment for another sentence in Michigan. The Court noted that the conduct in Michigan was not part of the relevant conduct for the latest offense, and the district court therefore acted within its discretion in imposing a consecutive 78-month sentence. The Court also affirmed the imposition of a 25-year term of supervised release.
the Court affirmed the convictions and sentence of a defendant convicted of inducing a minor to engage in prostitution in violation of 18 U.S.C. § 2422(b) and transporting an individual in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2421-22.
The Court rejected the argument that the mere fact that a person came to work for the defendant as a prostitute did not suffice to show that he “induced” prostitution for purposes of § 2422(b). The Court noted that induce merely means to cause.
On an issue of first impression, the Court held that the jury need not be instructed that, in order to establish a § 2422(b) violation, the government must prove that a defendant knew that a victim had not attained the age of 18 . The Court adopted Justice Alito’s view in his concurring opinion in Flores-Figueroa v. U.S., that context determines whether a mens rea applies to an element of the offense, and the view of six circuits that had addressed the issue. The context here was Congress's protection of minors. “A defendant such as Daniels who lures and encourages children into these activities does so at this own peril, regardless of what the victim says [about her age] or how she appears.”
Turning to sentencing, the Court rejected the argument that it was unreasonable to run Daniels’ sentences consecutive to an undischarged term of 420 months imprisonment for another sentence in Michigan. The Court noted that the conduct in Michigan was not part of the relevant conduct for the latest offense, and the district court therefore acted within its discretion in imposing a consecutive 78-month sentence. The Court also affirmed the imposition of a 25-year term of supervised release.
Friday, June 29, 2012
Haile: No Constructive Amendment
In U.S. v. Haile, No. 10-15965 (June 29, 2012), the Court affirmed drug trafficking and firearm convictions, in a case arising out of a reverse sting involving five kilos of cocaine, 1,000 kilos of marijuana, and several firearms.
The indictment incorrectly conflated the "during and in relation to" and possesses "in furtherance of" elements of a violation of 18 U.S.C. § 924(c). The Court rejected the defendants’ challenges based on this error. The Court noted that "minor deficiencies" in an indictment do not render it constitutionally deficient, and here the indictment expressly referred to § 924(c), thereby putting the defendants on notice of the charge. In addition, the trial court’s decision to drop part of the language of the indictment and to instruct the jury only on the "possesses in furtherance" prong of the statute was not an impermissible amendment, because the dropped "during and in relation to" was not necessary for a conviction.
The Court also rejected the argument that the trial court incorrectly failed to instruct the jury that it had to find that the defendants knew that the gun they possessed had the characteristics of a machine gun. The Court explained that, under U.S. v. O’Brien, the government was required to prove that the firearm was a machine gun – this fact was not a mere sentencing factor. However, O’Brien did not require proof that the defendant knew that the gun was a machine gun.
The Court held that 18 U.S.C. § 922(k), which criminalizes possession of a firearm with an obliterated serial number, requires proof that the defendant knew that the serial number was obliterated. The Court agreed with the defendant that the evidence was insufficient to prove this knowledge. While the defendant discussed guns in general before the arrest, and the gun was found in his flatbed truck, the government put forth no evidence that he actually possessed the gun for any significant length of time.
The Court rejected the argument that the trial court erred in refusing to instruct the jury that the defendant should be acquitted on account of the "outrageous government conduct" in connection with the reverse sting operation. The Court noted that there was no precedent holding that outrageous government conduct could constitute a defense for a jury to consider; consequently, the trial court did not abuse its discretion.
Turning to sentencing, the Court rejected the Eighth Amendment, "substantive unreasonableness," and "sentencing manipulation" challenges to a within-guideline sentence of 438 months.
The indictment incorrectly conflated the "during and in relation to" and possesses "in furtherance of" elements of a violation of 18 U.S.C. § 924(c). The Court rejected the defendants’ challenges based on this error. The Court noted that "minor deficiencies" in an indictment do not render it constitutionally deficient, and here the indictment expressly referred to § 924(c), thereby putting the defendants on notice of the charge. In addition, the trial court’s decision to drop part of the language of the indictment and to instruct the jury only on the "possesses in furtherance" prong of the statute was not an impermissible amendment, because the dropped "during and in relation to" was not necessary for a conviction.
The Court also rejected the argument that the trial court incorrectly failed to instruct the jury that it had to find that the defendants knew that the gun they possessed had the characteristics of a machine gun. The Court explained that, under U.S. v. O’Brien, the government was required to prove that the firearm was a machine gun – this fact was not a mere sentencing factor. However, O’Brien did not require proof that the defendant knew that the gun was a machine gun.
The Court held that 18 U.S.C. § 922(k), which criminalizes possession of a firearm with an obliterated serial number, requires proof that the defendant knew that the serial number was obliterated. The Court agreed with the defendant that the evidence was insufficient to prove this knowledge. While the defendant discussed guns in general before the arrest, and the gun was found in his flatbed truck, the government put forth no evidence that he actually possessed the gun for any significant length of time.
The Court rejected the argument that the trial court erred in refusing to instruct the jury that the defendant should be acquitted on account of the "outrageous government conduct" in connection with the reverse sting operation. The Court noted that there was no precedent holding that outrageous government conduct could constitute a defense for a jury to consider; consequently, the trial court did not abuse its discretion.
Turning to sentencing, the Court rejected the Eighth Amendment, "substantive unreasonableness," and "sentencing manipulation" challenges to a within-guideline sentence of 438 months.
Merrill: Fraudulent Chinese Ammunition Sales
In U.S. v. Merrill, No. 11-11432 (June 27, 2012), the Court affirmed convictions for conspiracy to commit false statements, major fraud, and wire fraud against the United States, in violation of 18 U.S.C. § 371, and for major fraud and wire fraud, in violation of 18 U.S.C. § 1031, 1343. The charges arose out of sales of Chinese ammunition to the United States Army in contravention of a contract that prohibited the delivery of weapons acquired, directly or indirectly, from a Communist Chinese military company.
The Court rejected the argument that the sale did not violate the contract because the ammunition had been acquired from China before the United States law prohibited purchases of ammunition from Chinese companies. The Court noted that the prohibition encompassed pre-prohibition ammunition.
The Court held that the trial court did not err when it excluded evidence, proffered by the defense, that the government knew the Chinese origin of the ammunition it was purchasing. Citing the holding in U.S. v. Neder, 197 F.3d 1122 (11th Cir. 1999) that a false statement can be material even if the decision maker knew it was false, the Court rejected Merrill’s argument that "a lie is only a lie if it works."
The Court rejected the argument that the district court should not have admitted admissions made during "plea negotiations," pointing out that Merrill had not been charged with any crimes at the time of his discussions with government officials, and that no specific promises of leniency were made.
The Court rejected the argument that the government should have produced government agents’ handwritten notes taken during interviews of Merrill. The Court held that agents’ accounts of Merrill’s testimony were not "transcriptions of Merrill’s words," and therefore not subject to production under Fed. R. Crim. P. 26.2(a).
The Court held that the district court did not err in declining to grant a defense witness use immunity, pointing out that only the Executive Branch can grant use immunity.
The Court rejected the argument that the sale did not violate the contract because the ammunition had been acquired from China before the United States law prohibited purchases of ammunition from Chinese companies. The Court noted that the prohibition encompassed pre-prohibition ammunition.
The Court held that the trial court did not err when it excluded evidence, proffered by the defense, that the government knew the Chinese origin of the ammunition it was purchasing. Citing the holding in U.S. v. Neder, 197 F.3d 1122 (11th Cir. 1999) that a false statement can be material even if the decision maker knew it was false, the Court rejected Merrill’s argument that "a lie is only a lie if it works."
The Court rejected the argument that the district court should not have admitted admissions made during "plea negotiations," pointing out that Merrill had not been charged with any crimes at the time of his discussions with government officials, and that no specific promises of leniency were made.
The Court rejected the argument that the government should have produced government agents’ handwritten notes taken during interviews of Merrill. The Court held that agents’ accounts of Merrill’s testimony were not "transcriptions of Merrill’s words," and therefore not subject to production under Fed. R. Crim. P. 26.2(a).
The Court held that the district court did not err in declining to grant a defense witness use immunity, pointing out that only the Executive Branch can grant use immunity.
Tuesday, June 26, 2012
Booker: No instruction required when defendant is eligible for parole
In Booker v. Sec., Fla. Dep’t of Corrections, No. 10-14966 (June 19, 2012), the Court denied habeas relief to a Florida death row inmate.
Booker pointed out that during deliberations over whether to sentence him to death, the jury asked whether, if it were to impose a sentence of life with the possibility of parole after serving 25 years, the defendant would get credit for time served. The trial court declined to answer the question. The jury then voted to sentence Booker to death.
In his habeas petition, Booker argued that the district court should have instructed the jury that, because of other consecutive sentences, he was "functionally" barred from ever being paroled. The Court recognized that in Simmons v. South Carolina, the Supreme Court held that in some circumstances a jury must be informed of a defendant’s parole ineligibility. The Court held that Simmons did not clearly govern when, as with Booker, the defendant is statutorily eligible for release on parole.
Booker pointed out that during deliberations over whether to sentence him to death, the jury asked whether, if it were to impose a sentence of life with the possibility of parole after serving 25 years, the defendant would get credit for time served. The trial court declined to answer the question. The jury then voted to sentence Booker to death.
In his habeas petition, Booker argued that the district court should have instructed the jury that, because of other consecutive sentences, he was "functionally" barred from ever being paroled. The Court recognized that in Simmons v. South Carolina, the Supreme Court held that in some circumstances a jury must be informed of a defendant’s parole ineligibility. The Court held that Simmons did not clearly govern when, as with Booker, the defendant is statutorily eligible for release on parole.
Friday, June 22, 2012
Jimenez: No "grouping" for illegal reentry and firearm possession
In U.S. v. Jimenez-Cardenas, No. 11-14651 (June 22, 2012), the Court rejected the argument that the district court misapplied the Sentencing Guidelines when it declined to group Jimenez’s convictions for illegal reentry under 8 U.S.C. § 1326(a) with his 18 U.S.C. § 922(g)(5) firearm convictions.
The grouping rules, U.S.S.G. § 3D1.2, provide that offenses should be grouped together when they involve substantially the same harm. But different "societal interests" are harmed by illegal reentry and illegal possession of a firearm. The offenses involve different conduct. No aspect of one offense served as the basis for a sentence enhancement of the other offense.
The grouping rules, U.S.S.G. § 3D1.2, provide that offenses should be grouped together when they involve substantially the same harm. But different "societal interests" are harmed by illegal reentry and illegal possession of a firearm. The offenses involve different conduct. No aspect of one offense served as the basis for a sentence enhancement of the other offense.
Pena: Deficient MARPOL survey conviction affirmed
In U.S. v. Pena, No. 10-15928 (June 20, 2012), the Court held that the United States has jurisdiction to prosecute a surveyor for violating statutes and regulations implementing the International Convention for the Prevent of Pollution from Ships (MARPOL), in the inspection of a ship under the flag of another nation, docked in the United States.
Reviewing a challenge to the sufficiency of the indictment raised for the first time on appeal, the Court found no actual prejudice from any deficiency in the indictment. The Court rejected the argument that the indictment failed to adequately describe the nature of the ship "survey" MARPOL requires.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Pena admitted that he not tested an oily water separator because he knew the separator was not working, yet issued a certificate which noted no deficiencies.
Reviewing a challenge to the sufficiency of the indictment raised for the first time on appeal, the Court found no actual prejudice from any deficiency in the indictment. The Court rejected the argument that the indictment failed to adequately describe the nature of the ship "survey" MARPOL requires.
The Court also rejected a challenge to the sufficiency of the evidence, pointing out that Pena admitted that he not tested an oily water separator because he knew the separator was not working, yet issued a certificate which noted no deficiencies.
House: Affirming Unconstitutional Seizure Convictions
In U.S. v.House, No. 10-15912 (June 20, 2012), in a 70-page opinion, the Court affirmed some convictions and reversed others, in a case involving a former officer of the Federal Protective Service pulling over motorists for unwarranted traffic stops in violation of the Fourth Amendment right to be free from unreasonable seizures, in violation of 18 U.S.C. § 242, and filing false incident reports, in violation of 18 U.S.C. § 1001.
The Court rejected challenges to the sufficiency of the evidence regarding the § 242 violations. The Court found that the government presented testimony establishing that House lacked probable cause to stop the motorists. In addition, House acted "under color of law," because he was wearing his uniform, and identified himself as a federal officer.
The Court also rejected challenges to the sufficiency of the evidence supporting the false statement convictions, citing the testimony of House’s supervisor that incident reports are use to initiate criminal prosecutions, and it is "very important" that a report "include truthful information in relation to all of the facts of the case."
The Court held that a jury instruction that told the jury that it could find a seizure to be "unreasonable" solely because the officer did a traffic stop without jurisdiction or authority was erroneous. However, the error was harmless as to a number of counts. As to these counts, the jury convicted House of making false incident reports, thus rejecting House’s view that he had probable cause to make the traffic stops.
The Court rejected challenges to the sufficiency of the evidence regarding the § 242 violations. The Court found that the government presented testimony establishing that House lacked probable cause to stop the motorists. In addition, House acted "under color of law," because he was wearing his uniform, and identified himself as a federal officer.
The Court also rejected challenges to the sufficiency of the evidence supporting the false statement convictions, citing the testimony of House’s supervisor that incident reports are use to initiate criminal prosecutions, and it is "very important" that a report "include truthful information in relation to all of the facts of the case."
The Court held that a jury instruction that told the jury that it could find a seizure to be "unreasonable" solely because the officer did a traffic stop without jurisdiction or authority was erroneous. However, the error was harmless as to a number of counts. As to these counts, the jury convicted House of making false incident reports, thus rejecting House’s view that he had probable cause to make the traffic stops.
Wednesday, June 13, 2012
Welch: Consent to search voluntary
In U.S. v. Welch, No. 10-14649 (June 13, 2012), the Court rejected a Fourth Amendment challenge to a search, and held that Welch’s prior conviction for robbery qualified a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA").
Looking for a suspect in an armed robbery, two days after the robbery, but without search or arrest warrants, police knocked on the door of an apartment where the suspect was said to reside, entered with guns drawn and found Welch (not the suspect) "smoking a ‘joint’ and minding a baby." Police asked Welch if they could search his apartment. He initially refused, but a few minutes later consented. The police found a pistol. Welch admitted that it was his.
Rejecting Welch’s argument that the pistol and Welch’s admission were the fruits of an unlawful search, the Court found that Welch had voluntarily consented to the search. The Court noted that Welch "must not have left coerced into consenting when [police] first asked, because he declined to consent... A person who actually says ‘no’ has not been coerced into saying ‘yes.’"
The Court found that Welch consented after police told him that they would get a search warrant and this "would take a while." Welch’s consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives: either police would get the search done quickly and fail to notice his pistol, or if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.
Turning to sentencing, the Court recognized that at the time of Welch’s prior Florida robbery, the Florida courts were divided as to whether a "snatching" amounted to robbery. But even assuming only a "snatching," the Court found that a "victim’s natural reaction is likely to be to try to hold on to his or her money or property, leading in many cases to serious injury." The offense therefore qualified under ACCA’s "residual clause," which provides that prior felony is a "violent felony" if it involves a serious risk of physical injury.
Looking for a suspect in an armed robbery, two days after the robbery, but without search or arrest warrants, police knocked on the door of an apartment where the suspect was said to reside, entered with guns drawn and found Welch (not the suspect) "smoking a ‘joint’ and minding a baby." Police asked Welch if they could search his apartment. He initially refused, but a few minutes later consented. The police found a pistol. Welch admitted that it was his.
Rejecting Welch’s argument that the pistol and Welch’s admission were the fruits of an unlawful search, the Court found that Welch had voluntarily consented to the search. The Court noted that Welch "must not have left coerced into consenting when [police] first asked, because he declined to consent... A person who actually says ‘no’ has not been coerced into saying ‘yes.’"
The Court found that Welch consented after police told him that they would get a search warrant and this "would take a while." Welch’s consent was not coerced, just constrained, by having to place his bet on one of two poor alternatives: either police would get the search done quickly and fail to notice his pistol, or if he put them to the trouble of getting a search warrant, they would search more thoroughly because he had inconvenienced them.
Turning to sentencing, the Court recognized that at the time of Welch’s prior Florida robbery, the Florida courts were divided as to whether a "snatching" amounted to robbery. But even assuming only a "snatching," the Court found that a "victim’s natural reaction is likely to be to try to hold on to his or her money or property, leading in many cases to serious injury." The offense therefore qualified under ACCA’s "residual clause," which provides that prior felony is a "violent felony" if it involves a serious risk of physical injury.
Monday, June 11, 2012
Lucas: Reservations about Death Penalty remains grounds for peremptory challenges
In Lucas v. Sec. Dep’t of Corrections, No. 08-15761 (June 8, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1976 murder.
The Court found that Lucas had failed to raise in state court proceedings his claim that the prosecution’s failure to disclose a rebuttal witness violated his confrontation clause rights. This claim was therefore procedurally barred. Even on the merits, the claim would have failed, as rebuttal witnesses are not subject to the pretrial disclosure requirement.
The Court also rejected the claim that counsel was ineffective for failing at the sentencing phase to negate the application of the heinous, atrocious and cruel aggravator. The Court noted that the evidence of the "beating" of the victim made it unlikely that additional evidence would have changed the outcome.
The Court rejected the challenge to the prosecution’s use of peremptory challenges to remove jurors who expressed reservations about the death penalty. The Court noted the absence of "clearly established" Supreme Court caselaw barring the use of peremptory challenges based on opinions regarding the death penalty.
The Court found that Lucas had failed to raise in state court proceedings his claim that the prosecution’s failure to disclose a rebuttal witness violated his confrontation clause rights. This claim was therefore procedurally barred. Even on the merits, the claim would have failed, as rebuttal witnesses are not subject to the pretrial disclosure requirement.
The Court also rejected the claim that counsel was ineffective for failing at the sentencing phase to negate the application of the heinous, atrocious and cruel aggravator. The Court noted that the evidence of the "beating" of the victim made it unlikely that additional evidence would have changed the outcome.
The Court rejected the challenge to the prosecution’s use of peremptory challenges to remove jurors who expressed reservations about the death penalty. The Court noted the absence of "clearly established" Supreme Court caselaw barring the use of peremptory challenges based on opinions regarding the death penalty.
Diaz: Inmate in Federal Prison not "in custody"
In Diaz v. State of Florida Fourth Judicial Circuit, No. 10-15202 (June 11, 2012), the Court affirmed the denial of habeas relief to a defendant who had completely served the sentence imposed by the state court and therefore was no longer "in custody."
Diaz was subject to two sentences, one imposed in federal court to run concurrently to any sentence imposed in state court, and one imposed in state court, to run consecutively and prior to the federal sentence. When Diaz finished serving his state sentence in state custody he was transferred to federal custody to finish serving his federal sentence. When in federal custody, Diaz filed a habeas petition challenging the constitutionality of his state convictions.
The Court held that because Diaz had fully served the state sentence he was no longer "in custody" for habeas purposes. The Court distinguished other cases in which an inmate was allowed to challenge a prior conviction when he serving the latter of two consecutive sentences imposed by the same sovereign. In those cases, an error in the first sentence would delay the start of the latter sentence. But here, Diaz was serving his federal sentence, and the federal government is "generally not required to credit any portion of a prisoner’s time served in state custody."
Diaz was subject to two sentences, one imposed in federal court to run concurrently to any sentence imposed in state court, and one imposed in state court, to run consecutively and prior to the federal sentence. When Diaz finished serving his state sentence in state custody he was transferred to federal custody to finish serving his federal sentence. When in federal custody, Diaz filed a habeas petition challenging the constitutionality of his state convictions.
The Court held that because Diaz had fully served the state sentence he was no longer "in custody" for habeas purposes. The Court distinguished other cases in which an inmate was allowed to challenge a prior conviction when he serving the latter of two consecutive sentences imposed by the same sovereign. In those cases, an error in the first sentence would delay the start of the latter sentence. But here, Diaz was serving his federal sentence, and the federal government is "generally not required to credit any portion of a prisoner’s time served in state custody."
Thursday, June 07, 2012
Cortes-Salazar: Padilla-Reyes remains binding
In U.S. v. Cortes-Salazar, No. 11-11428 (May 30, 2012), the Court held that a prior conviction for a "lewd assault act," in violation of Fla. Stat. § 800.04, qualified as "crime of violence" under U.S.S.G. § 2L1.2, and therefore supported the 16-level enhancement the district court imposed on a defendant convicted of illegal re-entry after deportation.
The Court noted that it had previously held in U.S. v. Padilla-Reyes that a prior conviction under Fla. Stat. § 800.04, with or without victim contact, qualified as an "aggravated felony" for purposes of § 2L1.2 and therefore supported a 16-level enhancement. The Court recognized that the Guideline definitions had changed since Padilla-Reyes. The Court also noted a number of cases decided subsequent to Padilla-Reyes. However, the Court rejected the defendant’s arguments that these changes in the law undermined the viability of Padilla-Reyes, and determined, to the contrary, that Padilla-Reyes "remains binding precedent."
The Court noted that it had previously held in U.S. v. Padilla-Reyes that a prior conviction under Fla. Stat. § 800.04, with or without victim contact, qualified as an "aggravated felony" for purposes of § 2L1.2 and therefore supported a 16-level enhancement. The Court recognized that the Guideline definitions had changed since Padilla-Reyes. The Court also noted a number of cases decided subsequent to Padilla-Reyes. However, the Court rejected the defendant’s arguments that these changes in the law undermined the viability of Padilla-Reyes, and determined, to the contrary, that Padilla-Reyes "remains binding precedent."
Tuesday, June 05, 2012
Kendrick: No vindictive prosecution after acquittal
In U.S. v. Kendrick, No. 11-12620 (June 1, 2012), http://www.ca11.uscourts.gov/opinions/ops/201112620.pdfthe Court rejected challenges to a conviction for alien smuggling for commercial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).
Kendrick had been acquitted, at a prior trial, of importing 900 pounds of marihuana into the United States. In his defense at this earlier trial, Kendrick testified that he went to the Bahamas not to bring back marihuana, but aliens. The government thereafter indicted Kendrick of smuggling illegal aliens, and he was convicted. On appeal, Kendrick claimed that he was the victim of vindictive prosecution after his acquittal. Rejecting this claim, the Court noted that the new indictment did not state heightened charges (the maximum penalties for alien smuggling are less than marihuana importing). Moreover, the government explained that until Kendrick admitted at trial having smuggled aliens, it did not have sufficient evidence to charge Kendrick for this offense.
The Court also rejected Kendrick’s challenge to the sufficiency of the evidence, pointing out, inter alia, that Kendrick fled the Coast Guard when a vessel approached his vessel.
The Court also affirmed the district court’s exclusion of evidence that Kendrick had been acquitted of the prior marihuana charge. The Court pointed out that an acquittal is hearsay. The Court also noted that the marihuana charge was irrelevant to alien smuggling.
The Court also rejected the argument that a portion of the prosecutor’s closing argument in the first trial should have been admitted at the second trial. In his closing, the prosecutor stated that the $25,000 Kendrick received was for the risk of smuggling drugs, not aliens. The Court found that this evidence would have “confused” the jury.
Kendrick had been acquitted, at a prior trial, of importing 900 pounds of marihuana into the United States. In his defense at this earlier trial, Kendrick testified that he went to the Bahamas not to bring back marihuana, but aliens. The government thereafter indicted Kendrick of smuggling illegal aliens, and he was convicted. On appeal, Kendrick claimed that he was the victim of vindictive prosecution after his acquittal. Rejecting this claim, the Court noted that the new indictment did not state heightened charges (the maximum penalties for alien smuggling are less than marihuana importing). Moreover, the government explained that until Kendrick admitted at trial having smuggled aliens, it did not have sufficient evidence to charge Kendrick for this offense.
The Court also rejected Kendrick’s challenge to the sufficiency of the evidence, pointing out, inter alia, that Kendrick fled the Coast Guard when a vessel approached his vessel.
The Court also affirmed the district court’s exclusion of evidence that Kendrick had been acquitted of the prior marihuana charge. The Court pointed out that an acquittal is hearsay. The Court also noted that the marihuana charge was irrelevant to alien smuggling.
The Court also rejected the argument that a portion of the prosecutor’s closing argument in the first trial should have been admitted at the second trial. In his closing, the prosecutor stated that the $25,000 Kendrick received was for the risk of smuggling drugs, not aliens. The Court found that this evidence would have “confused” the jury.
Wednesday, May 30, 2012
Evans: Brain Damage evidence is basis for habeas relief
In Evans v. Sec. Dep’t of Corrections, No. 10-14920 (May 23, 2012) (2-1) (Edmondson, J., dissenting), the Court reversed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder.
The Court found that the Florida Supreme Court had unreasonably discounted the mitigation evidence that Evans’ trial counsel failed to present at his sentencing hearing. The evidence would have established Evans’ brain damage dating from an accident he had as a child. The Court pointed out that in Porter v. McCollum, the Supreme Court held that unpresented mitigating evidence must be considered by a reviewing court from the point of the view of the jury that never heard the evidence. The Florida Supreme Court failed to consider the possibility that competent counsel could have used the brain damage evidence in mitigation.
The Court found that the Florida Supreme Court had unreasonably discounted the mitigation evidence that Evans’ trial counsel failed to present at his sentencing hearing. The evidence would have established Evans’ brain damage dating from an accident he had as a child. The Court pointed out that in Porter v. McCollum, the Supreme Court held that unpresented mitigating evidence must be considered by a reviewing court from the point of the view of the jury that never heard the evidence. The Florida Supreme Court failed to consider the possibility that competent counsel could have used the brain damage evidence in mitigation.
Perez: Lafler did not "break new ground"
In In Re Michael Perez, No. 12-12240 (May 25, 2012), the Court held that a § 2255 petitioner was not entitled to raise a claim of ineffective assistance of counsel in a second or successive § 2255 motion. Perez claimed that Missouri v. Frye and Lafler v. Cooper were “new rules of constitutional law” upon which he could rely in a second or successive § 2255 petition. The Court, however, found that these cases did not “break new ground,” because in Hill v. Lockhart the Supreme Court had already extended Strickland’s test for ineffective assistance to the plea bargaining process. In addition, the fact that the Supreme Court decided these two cases on habeas petitions eliminated any doubt as to whether they broke new ground, because, under AEDPA, habeas petitioners must show a decision contrary to “clearly established law” in order to prevail.
Tuesday, May 29, 2012
Schneider: Florida False Imprisonment is Violent Felony
In U.S. v. Schneider, No. 10-15863 (May 24, 2012), the Court held that a prior conviction for false imprisonment in violation of Fla. Stat. § 787.02(1)(a), qualifies as a violent felony for purposes of the Armed Career Criminal Act.
The Court rejected the government’s argument that the defendant waived the issue by failing to object to the underlying facts set forth in the PSI. The Court noted that while Schneider’s objection to the factual paragraph of the PSI focused on a legal argument rather than setting out any factual dispute, he did state that false imprisonment includes “nonviolent” conduct. In addition, the premise of the argument at sentencing was that the factual allegations did not suffice to support the ACCA enhancement.
The Court noted that in false imprisonment cases in which a defendant “secretly” – i.e., by ruse, abducted another person, a risk of injury can result once the victim might try to resist or escape. The Court analogized the risk to the risk of injury caused by a vehicular flight, which the Supreme Court found to be a violent felony in Sykes v. U.S. The Court rejected the defendant’s analogy to a perpetrator’s failure to report for scheduled weekend confinement, which Chambers v. U.S. held did not qualify as a violent felony.
The Court rejected the government’s argument that the defendant waived the issue by failing to object to the underlying facts set forth in the PSI. The Court noted that while Schneider’s objection to the factual paragraph of the PSI focused on a legal argument rather than setting out any factual dispute, he did state that false imprisonment includes “nonviolent” conduct. In addition, the premise of the argument at sentencing was that the factual allegations did not suffice to support the ACCA enhancement.
The Court noted that in false imprisonment cases in which a defendant “secretly” – i.e., by ruse, abducted another person, a risk of injury can result once the victim might try to resist or escape. The Court analogized the risk to the risk of injury caused by a vehicular flight, which the Supreme Court found to be a violent felony in Sykes v. U.S. The Court rejected the defendant’s analogy to a perpetrator’s failure to report for scheduled weekend confinement, which Chambers v. U.S. held did not qualify as a violent felony.
Wednesday, May 23, 2012
Zuniga-Artega: Aggravated Identity Theft Can Involve Dead Person
In U.S. v. Zuniga-Arteaga, No. 11-673 (May 21, 2012), the Court held that aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) can involve the identity of a person who is no longer living.
The statute makes it a crime to use a "means of identification of another person." The Court noted that the word "person" had no "definitive legal meaning." But the context of the use of the word indicated that the statute did not mean to distinguish between the living and the dead. The statute also criminalized use of a "false identification document," conduct that can involve a dead person. In addition, use of the identification of a dead person "has very real consequences for the living, such as the beneficiaries of the decedents."
The statute makes it a crime to use a "means of identification of another person." The Court noted that the word "person" had no "definitive legal meaning." But the context of the use of the word indicated that the statute did not mean to distinguish between the living and the dead. The statute also criminalized use of a "false identification document," conduct that can involve a dead person. In addition, use of the identification of a dead person "has very real consequences for the living, such as the beneficiaries of the decedents."
Wednesday, May 16, 2012
Kaley: Defendant may not try case twice
In U.S. v. Kaley, No. 10-15048 (April 26, 2012), the Court held that, in a pretrial hearing on whether a post-indictment restraining order on a defendant’s disposition of assets encroaches on the defendant’s Sixth Amendment right to pay for his counsel of choice, the defendant may not challenge whether the conduct alleged in the indictment supports probable cause.
The Court found that the "paramount importance" of not forcing the government to "tip its hand" prematurely about the strength of its case outweighed the defendant’s constitutionally-protected right to counsel.
The Court recognized that it is Due Process that requires a hearing on the permissibility of a restraint on a defendant’s assets, as Congress neglected to provide for such a hearing by statute when it empowered the government to restrain a defendant’s assets pre-trial. To determine the requirements of Due Process, the Court cited the legislative history of the statute that neglected to provide for a hearing.
The Court explained that "defendants are not entitled to try their entire case twice," and pointed out that, even without counsel of choice that a defendant could pay for, at trial "the defendant will have counsel (appointed, if necessary)."
The Court found that the "paramount importance" of not forcing the government to "tip its hand" prematurely about the strength of its case outweighed the defendant’s constitutionally-protected right to counsel.
The Court recognized that it is Due Process that requires a hearing on the permissibility of a restraint on a defendant’s assets, as Congress neglected to provide for such a hearing by statute when it empowered the government to restrain a defendant’s assets pre-trial. To determine the requirements of Due Process, the Court cited the legislative history of the statute that neglected to provide for a hearing.
The Court explained that "defendants are not entitled to try their entire case twice," and pointed out that, even without counsel of choice that a defendant could pay for, at trial "the defendant will have counsel (appointed, if necessary)."
Friday, May 11, 2012
Stephens: Pleading guilty in mitigation not ineffective
In Stephens v. Sec. Fla. Dep’t of Corrections, No. 11-11727 (May 1, 2012), the Court denied habeas relief to a Florida inmate sentenced to death for a 1997 murder.
The Court rejected the argument that a death sentence for felony murder violated the Eighth Amendment prohibition on cruel and unusual punishment, pointing out that the jury was properly instructed to find the requisite mens rea.
The Court rejected ineffective assistance of counsel claims, including a claim that counsel was deficient at the penalty phase. The Court noted that counsel made a strategic decision to present Stephens as a "good guy," and that other evidence would have been adverse to this defense. The Court also did not fault counsel for convincing the defendant to plead guilty to certain charged to show mitigation at the penalty phase.
The Court rejected the argument that a death sentence for felony murder violated the Eighth Amendment prohibition on cruel and unusual punishment, pointing out that the jury was properly instructed to find the requisite mens rea.
The Court rejected ineffective assistance of counsel claims, including a claim that counsel was deficient at the penalty phase. The Court noted that counsel made a strategic decision to present Stephens as a "good guy," and that other evidence would have been adverse to this defense. The Court also did not fault counsel for convincing the defendant to plead guilty to certain charged to show mitigation at the penalty phase.
Register: Grouping does not require common scheme
In U.S. v. Register, No. 11-12773 (May 4, 2012), the Court held that the sentencing court erroneously failed to group all of Register’s tax related offenses into a single group pursuant to U.S.S.G. § 3D1.2(b) or (d).
The Court found that the offenses, though subject to two different Guidelines, were "of the same general type" and "closely related." The Court also noted the "substantial [factual] overlap" among the offenses. The Court noted that there is no requirement for grouping that counts involve a common criminal objective or a common scheme; the counts can arise from various schemes.
The Court found that the offenses, though subject to two different Guidelines, were "of the same general type" and "closely related." The Court also noted the "substantial [factual] overlap" among the offenses. The Court noted that there is no requirement for grouping that counts involve a common criminal objective or a common scheme; the counts can arise from various schemes.
Mansfield: Miranda error Harmless under AEDPA
In Mansfield v. Sec. Dep’t of Corrections, No. 09-12312 (May 9, 2012),
the Court denied habeas relief to a Florida inmate sentenced to death for a 1995 murder.
At trial, a videotaped confession obtained in violation of Miranda was erroneously admitted. The Florida state courts concluded that the error was harmless.
The Court, viewing the harmless error "through the [deferential] lens of AEDPA," credited the Florida Supreme Court’s reliance on evidence in support of Mansfield’s conviction. The Court noted evidence that Mansfield went swimming shortly after committing the murder in order to wash off any blood, a mark on the victim left by Mansfield’s ring, and evidence linking Mansfield to the crime scene. This and other "substantial" evidence made the erroneous admission of the videotape harmless.
the Court denied habeas relief to a Florida inmate sentenced to death for a 1995 murder.
At trial, a videotaped confession obtained in violation of Miranda was erroneously admitted. The Florida state courts concluded that the error was harmless.
The Court, viewing the harmless error "through the [deferential] lens of AEDPA," credited the Florida Supreme Court’s reliance on evidence in support of Mansfield’s conviction. The Court noted evidence that Mansfield went swimming shortly after committing the murder in order to wash off any blood, a mark on the victim left by Mansfield’s ring, and evidence linking Mansfield to the crime scene. This and other "substantial" evidence made the erroneous admission of the videotape harmless.
Peruz-Peruz: No safety valve for Title 46 offenses
In U.S. v. Pertuz-Pertuz, No. 10-15800 (May 11, 2012), the Court held that a defendant convicted of conspiring to possess cocaine while aboard a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. § 70503, and penalized pursuant to 21 U.S.C. § 960, could not benefit from a safety valve sentence below the mandatory minimum sentence.
The Court noted that the safety valve statute, 18 U.S.C. § 3553(f), lists "offenses" for which a safety valve reduction may be available, and no offense in Title 46 is on the list. The Court rejected the argument that the defendant could qualify for safety-valve because his offense cross-referenced the punishment set forth a 21 U.S.C. § 960. The Court pointed out that the safety valve statute refers to offenses, not sentences.
The Court noted that the safety valve statute, 18 U.S.C. § 3553(f), lists "offenses" for which a safety valve reduction may be available, and no offense in Title 46 is on the list. The Court rejected the argument that the defendant could qualify for safety-valve because his offense cross-referenced the punishment set forth a 21 U.S.C. § 960. The Court pointed out that the safety valve statute refers to offenses, not sentences.
Tuesday, April 24, 2012
Cook: No Miranda warnings for confession to father
In Cook v. Warden, No. 10-13334 (April 20, 2012),
the Court affirmed the denial of habeas relief, finding Cook’s claims of ineffective assistance of counsel to be unsupported by the record. The Court also rejected the argument that the petitioner’s confession to his father, an FBI agent, should have been suppressed, because he was not given Miranda warnings. "[N]o Miranda violation occurs when a suspect confesses to a family member who is employed in law enforcement, even when the family member – acting in his private capacity – urges the suspect to speak."
the Court affirmed the denial of habeas relief, finding Cook’s claims of ineffective assistance of counsel to be unsupported by the record. The Court also rejected the argument that the petitioner’s confession to his father, an FBI agent, should have been suppressed, because he was not given Miranda warnings. "[N]o Miranda violation occurs when a suspect confesses to a family member who is employed in law enforcement, even when the family member – acting in his private capacity – urges the suspect to speak."
Thursday, April 19, 2012
Hutchinson: Negligent habeas lawyers does not support equitable tolling
In Hutchinson v. Florida, No. 10-14978 (April 19, 2012), the Court held that a habeas petition was time-barred by AEDPA, and declined to apply the equitable tolling doctrine in the favor of a Florida death row inmate.
Despite entreaties from Hutchinson that they were going to miss the deadline for filing his state habeas petition within the one-year federal deadline that would toll the federal statute of limitations, Hutchinson’s lawyer believed that they had more time than they in fact did, and filed the state petition after the one-year deadline had lapsed. As a result, after the state courts denied habeas relief, Hutchinson’s federal petition was untimely. Hutchinson invoked equitable tolling, but the Court held that missing the statute of limitations could not be excused based on counsel’s negligence, pointing out that Hutchinson, though he protested that his state petition was being filed too late for federal purposes, never filed a federal habeas petition or took any action to preserve his federal petition for nearly four years. Consequently, he did not pursue his rights diligently.
Concurring, Judge Barkett argued that in death row cases, one should not adhere to the principle that an inmate must bear the consequences of his lawyer’s negligence.
Despite entreaties from Hutchinson that they were going to miss the deadline for filing his state habeas petition within the one-year federal deadline that would toll the federal statute of limitations, Hutchinson’s lawyer believed that they had more time than they in fact did, and filed the state petition after the one-year deadline had lapsed. As a result, after the state courts denied habeas relief, Hutchinson’s federal petition was untimely. Hutchinson invoked equitable tolling, but the Court held that missing the statute of limitations could not be excused based on counsel’s negligence, pointing out that Hutchinson, though he protested that his state petition was being filed too late for federal purposes, never filed a federal habeas petition or took any action to preserve his federal petition for nearly four years. Consequently, he did not pursue his rights diligently.
Concurring, Judge Barkett argued that in death row cases, one should not adhere to the principle that an inmate must bear the consequences of his lawyer’s negligence.
Wednesday, April 18, 2012
Noriega: Remanding for suppression factfinding
In U.S. v. Noriega, No. 10-12480 (April 11, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201012480.op2.pdf
the Court remanded a case to the trial court for additional factfindings regarding a suppression issue.
Alabama police, acting on a tip, obtained a warrant to search a house, and found a marijuana growing operation at this location. The police then arrived at a second home the tip had mentioned, and, without a search warrant, conducted a protective sweep of the property, and found evidence of a second growing operation. The police then obtained a warrant.
Before trial, the defendants moved to suppress the items found in the second search, arguing that the protective sweep was conducted without the requisite search warrant. The Court noted that even if the protective sweep was not permitted, the evidence could have been properly admitted if was obtained from an "independent source." Relying on this doctrine required excising from the second search warrant affidavit any information gained during the arguably illegal initial entry, and determining whether the remaining information sufficed to support a probable cause finding. If the police would have sought a warrant anyway, without regard to what they discovered during their protective sweep, the district court did not err in denying the motion to suppress. Because the district court made no finding on this issue, and it is its role, not the Court of Appeals’, to find facts, the Court remanded the case for this factfinding. If the police would not have sought the warrant anyway, the Court would decide whether the protective sweep violated the Fourth Amendment.
The panel retained jurisdiction over the appeal pending the district court’s factfinding.
http://www.ca11.uscourts.gov/opinions/ops/201012480.op2.pdf
the Court remanded a case to the trial court for additional factfindings regarding a suppression issue.
Alabama police, acting on a tip, obtained a warrant to search a house, and found a marijuana growing operation at this location. The police then arrived at a second home the tip had mentioned, and, without a search warrant, conducted a protective sweep of the property, and found evidence of a second growing operation. The police then obtained a warrant.
Before trial, the defendants moved to suppress the items found in the second search, arguing that the protective sweep was conducted without the requisite search warrant. The Court noted that even if the protective sweep was not permitted, the evidence could have been properly admitted if was obtained from an "independent source." Relying on this doctrine required excising from the second search warrant affidavit any information gained during the arguably illegal initial entry, and determining whether the remaining information sufficed to support a probable cause finding. If the police would have sought a warrant anyway, without regard to what they discovered during their protective sweep, the district court did not err in denying the motion to suppress. Because the district court made no finding on this issue, and it is its role, not the Court of Appeals’, to find facts, the Court remanded the case for this factfinding. If the police would not have sought the warrant anyway, the Court would decide whether the protective sweep violated the Fourth Amendment.
The panel retained jurisdiction over the appeal pending the district court’s factfinding.
Tobin: Internet Drug Distribution Convictions Affirmed
In U.S. v. Tobin, No. 09-13944 (April 12, 2012),
http://www.ca11.uscourts.gov/opinions/ops/200913944.pdf
the Court affirmed the convictions of five defendants convicted of distributing controlled substances over the internet, and vacated one defendant’s sentence.
The Court rejected the argument that the Controlled Substances Act was ambiguous, and unconstitutionally vague, with regard to the criminalization of distribution over the internet. The Court found that the CSA applied "regardless of the channel of distribution." The Court also rejected the argument that it was ambiguous whether the CSA incorporated state law standards requiring in-person prescriptions.
The Court rejected the argument that the defendants were erroneously precluded from arguing that they were unaware that their conduct violated the law. The Court explained that it is not necessary for conduct to be "willful" to violate the CSA; it is sufficient for a person to do so "knowingly."
The Court found no error in the district court’s rejection of the defense that a defendant subjectively believed that he was acting in accordance with professional standards, pointing out that this issue is decided from an objective, not subjective, viewpoint.
The Court found that the district erred in ruling that the conspiracy statute, 21 U.S.C. § 846, did not require a showing of a "willful" state of mind. However, these rulings had no effect on one defendant who did not identify any evidence that he would have presented in support of his "good-faith" defense, and on another who took the stand in his defense, and whom the jury therefore might have disbelieved on this basis alone.
Citing its narrow reading in Demarest of the Supreme Court’s fractured decision in Santos, the Court rejected the argument that, for purposes of the money-laundering statute, "proceeds" should have been defined to the jury as "profits." The Court read the money-laundering statute to refer to "profits" only when an illegal gambling business is involved.
The Court rejected one defendant’s argument that the district court should have granted a continuance when his counsel moved to withdraw six days before trial. The Court noted that the district court informed the defendant that new counsel could be appointed for him, and the defendant elected, knowingly, to proceed pro se.
The Court found no reversible error arising out of letters that the jury received during the case, from unknown sources, regarding the case. The district court examined jurors about one letter, and properly admonished the jury about not relying on extrinsic evidence.
The Court agreed with one defendant that in closing argument, a prosecutor argued facts that were not in evidence when it described a witness’s testimony, but found that the misstatement had not prejudiced the defendant.
The Court noted that on two occasions the district court addressed the issue of plea negotiations. The district court explicitly indicated that it would like the defendants to begin to engage in plea discussions. This violated the "categorical mandate" of Fed. R. Crim. P. 11, which prohibits such involvement. Even "innocuous" comments can violate Rule 11. "[A] district court’s suggestion that a defendant look into pleading guilty may give the impression that the district court has already taken a position regarding the question of guilty and . . . this can undermine the defendant’s confidence in the neutrality of the tribunal." The Court decided that a new trial was not the proper remedy, but ordered a new sentencing before a different judge.
The Court rejected challenges to the sentences, pointing that a district court may rely on acquitted conduct as a basis for punishment, and finding that defendants had not shown unwarranted sentencing disparities.
http://www.ca11.uscourts.gov/opinions/ops/200913944.pdf
the Court affirmed the convictions of five defendants convicted of distributing controlled substances over the internet, and vacated one defendant’s sentence.
The Court rejected the argument that the Controlled Substances Act was ambiguous, and unconstitutionally vague, with regard to the criminalization of distribution over the internet. The Court found that the CSA applied "regardless of the channel of distribution." The Court also rejected the argument that it was ambiguous whether the CSA incorporated state law standards requiring in-person prescriptions.
The Court rejected the argument that the defendants were erroneously precluded from arguing that they were unaware that their conduct violated the law. The Court explained that it is not necessary for conduct to be "willful" to violate the CSA; it is sufficient for a person to do so "knowingly."
The Court found no error in the district court’s rejection of the defense that a defendant subjectively believed that he was acting in accordance with professional standards, pointing out that this issue is decided from an objective, not subjective, viewpoint.
The Court found that the district erred in ruling that the conspiracy statute, 21 U.S.C. § 846, did not require a showing of a "willful" state of mind. However, these rulings had no effect on one defendant who did not identify any evidence that he would have presented in support of his "good-faith" defense, and on another who took the stand in his defense, and whom the jury therefore might have disbelieved on this basis alone.
Citing its narrow reading in Demarest of the Supreme Court’s fractured decision in Santos, the Court rejected the argument that, for purposes of the money-laundering statute, "proceeds" should have been defined to the jury as "profits." The Court read the money-laundering statute to refer to "profits" only when an illegal gambling business is involved.
The Court rejected one defendant’s argument that the district court should have granted a continuance when his counsel moved to withdraw six days before trial. The Court noted that the district court informed the defendant that new counsel could be appointed for him, and the defendant elected, knowingly, to proceed pro se.
The Court found no reversible error arising out of letters that the jury received during the case, from unknown sources, regarding the case. The district court examined jurors about one letter, and properly admonished the jury about not relying on extrinsic evidence.
The Court agreed with one defendant that in closing argument, a prosecutor argued facts that were not in evidence when it described a witness’s testimony, but found that the misstatement had not prejudiced the defendant.
The Court noted that on two occasions the district court addressed the issue of plea negotiations. The district court explicitly indicated that it would like the defendants to begin to engage in plea discussions. This violated the "categorical mandate" of Fed. R. Crim. P. 11, which prohibits such involvement. Even "innocuous" comments can violate Rule 11. "[A] district court’s suggestion that a defendant look into pleading guilty may give the impression that the district court has already taken a position regarding the question of guilty and . . . this can undermine the defendant’s confidence in the neutrality of the tribunal." The Court decided that a new trial was not the proper remedy, but ordered a new sentencing before a different judge.
The Court rejected challenges to the sentences, pointing that a district court may rely on acquitted conduct as a basis for punishment, and finding that defendants had not shown unwarranted sentencing disparities.
Tuesday, April 10, 2012
Chitwood: Georgia False Imprisonment qualifies as "crime of violence"
In U.S. v. Chitwood, No. 11-12054 (April 5, 2012),
http://www.ca11.uscourts.gov/opinions/ops/201112054.pdf
the Court held that the Georgia offense of false imprisonment qualified as a crime of violence for purposes of "career offender" treatment under U.S.S.G. § 4B1.1.
The Court recognized that the use or threat of physical force is not an element of Georgia false imprisonment. Consequently, the offense did not qualify under the "elements" test of the career offender guidelines. However, the offense did qualify under the "residual clause."
The Court pointed out that in Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court had retreated from its statement in Begay v. U.S., 553 U.S. 137 (2008) that conduct must be "purposeful, violent and aggressive" in order to qualify under the residual clause. Sykes limited this inquiry to strict liability-type offenses. Offenses that are not strict liability, negligence or recklessness crimes qualify under the residual clause if they categorically pose a serious potential risk of physical injury that is similar to the risks of physical injury posed one of the crimes enumerated in the guideline.
Georgia cases make clear that false imprisonment ordinarily creates risks of physical injury to another similar to the risks of burglary, an enumerated offense. Arresting, confining, or detaining someone against his or her will presents a risk of serious physical injury similar to burglary.
The Court noted that statistical evidence is not required to prove the risk of injury. "Here, being without the benefit of empirical evidence, we rely on our common sense."
http://www.ca11.uscourts.gov/opinions/ops/201112054.pdf
the Court held that the Georgia offense of false imprisonment qualified as a crime of violence for purposes of "career offender" treatment under U.S.S.G. § 4B1.1.
The Court recognized that the use or threat of physical force is not an element of Georgia false imprisonment. Consequently, the offense did not qualify under the "elements" test of the career offender guidelines. However, the offense did qualify under the "residual clause."
The Court pointed out that in Sykes v. U.S., 131 S.Ct. 2267 (2011), the Supreme Court had retreated from its statement in Begay v. U.S., 553 U.S. 137 (2008) that conduct must be "purposeful, violent and aggressive" in order to qualify under the residual clause. Sykes limited this inquiry to strict liability-type offenses. Offenses that are not strict liability, negligence or recklessness crimes qualify under the residual clause if they categorically pose a serious potential risk of physical injury that is similar to the risks of physical injury posed one of the crimes enumerated in the guideline.
Georgia cases make clear that false imprisonment ordinarily creates risks of physical injury to another similar to the risks of burglary, an enumerated offense. Arresting, confining, or detaining someone against his or her will presents a risk of serious physical injury similar to burglary.
The Court noted that statistical evidence is not required to prove the risk of injury. "Here, being without the benefit of empirical evidence, we rely on our common sense."
Rosales-Bruno: Florida "False Imprisonment" not a "crime of violence"
In U.S. v. Rosales-Bruno, No. 11-14293 (April 6, 2012), the Court held that the Florida offense of false imprisonment did not qualify as a "crime of violence" for purposes of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Court noted that "where the statutory definition of the prior offense encompasses both violent and nonviolent conduct, we look [to] whether the prior conviction falls under a particular statutory phrase that qualifies it as a ‘crime of violence.’" Looking to Florida caselaw interpreting the "false imprisonment" statute, the Court noted that the offense "can be committed without employing the type of ‘physical force’ contemplated in the Guidelines." Not all false imprisonments involve the use or threat of physical force.
Turning to the evidence regarding the offense, the Court rejected the government argument that it could rely on an arrest affidavit. The Court explained that this is not the type of document that can be relied on, citing Shepard v. U.S., 544 U.S. 12 (2005).
The Court also rejected the government’s argument that defense counsel had not objected to facts recited in a paragraph of the PSR with the requisite specificity. Though recognizing that "vague assertions of inaccuracies" are insufficient to preserve an objection, the Court found that the defense had adequately objected when the PSR Addendum stated: "The defendant also objects to paragraph 30 which contains the circumstances of the false imprisonment case."
Finally, the Court rejected the government’s argument that viewing all of the charges in the information together, one could draw an inference that the false imprisonment was violent. Citing Shepard, the Court noted the "dubious merit" of this approach, and rejected it because the other charges were non-violent.
The Court noted that "where the statutory definition of the prior offense encompasses both violent and nonviolent conduct, we look [to] whether the prior conviction falls under a particular statutory phrase that qualifies it as a ‘crime of violence.’" Looking to Florida caselaw interpreting the "false imprisonment" statute, the Court noted that the offense "can be committed without employing the type of ‘physical force’ contemplated in the Guidelines." Not all false imprisonments involve the use or threat of physical force.
Turning to the evidence regarding the offense, the Court rejected the government argument that it could rely on an arrest affidavit. The Court explained that this is not the type of document that can be relied on, citing Shepard v. U.S., 544 U.S. 12 (2005).
The Court also rejected the government’s argument that defense counsel had not objected to facts recited in a paragraph of the PSR with the requisite specificity. Though recognizing that "vague assertions of inaccuracies" are insufficient to preserve an objection, the Court found that the defense had adequately objected when the PSR Addendum stated: "The defendant also objects to paragraph 30 which contains the circumstances of the false imprisonment case."
Finally, the Court rejected the government’s argument that viewing all of the charges in the information together, one could draw an inference that the false imprisonment was violent. Citing Shepard, the Court noted the "dubious merit" of this approach, and rejected it because the other charges were non-violent.
Monday, April 09, 2012
Lebowitz: Child pornography production sentence affirmed
In U.S. v. Lebowitz, No. 10-13340 (April 5, 2012),
the Court affirmed convictions for producing child pornography, and affirmed a 320 months’ sentence.
The Court rejected the argument that a law enforcement agent violated Lebowitz’ Fourth Amendment rights when, after arresting Lebowitz at the residence of a minor that he had planned to meet through internet exchanges that mentioned oral stimulation and “an adventure,” she searched Lebowitz’ car without a warrant. The Court found that the good faith exception to the exclusionary rule applied, because the investigator relied on the Court’s precedent, which until recently allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.
Turning to sentencing, the Court rejected Lebowitz’ claim that his sentence was substantively unreasonable, noting: “Child sex crimes are among the most egregious and despicable of societal and criminal offenses.”
the Court affirmed convictions for producing child pornography, and affirmed a 320 months’ sentence.
The Court rejected the argument that a law enforcement agent violated Lebowitz’ Fourth Amendment rights when, after arresting Lebowitz at the residence of a minor that he had planned to meet through internet exchanges that mentioned oral stimulation and “an adventure,” she searched Lebowitz’ car without a warrant. The Court found that the good faith exception to the exclusionary rule applied, because the investigator relied on the Court’s precedent, which until recently allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.
Turning to sentencing, the Court rejected Lebowitz’ claim that his sentence was substantively unreasonable, noting: “Child sex crimes are among the most egregious and despicable of societal and criminal offenses.”
Friday, April 06, 2012
Keen: Sentencing Error to Group Fraud and Bribery
In U.S. v. Keen, No. 09-16027 (April 5, 2012), the Court affirmed all convictions arising out of bribery charges that stemmed from corruption in Dixie County, Florida, but vacated one sentence.
The Court rejected the argument that Keen did not qualify as an "agent" of Dixie County because he was not authorized to act with respect to the entity’s funds. The Court noted that such a narrowing reading of the term "agent" would only be needed to avoid an "absurd result." It sufficed that Keen was authorized to act on behalf of Dixie County.
The Court also rejected Keen’s statute of limitations challenge, pointing out that the government charged conduct within the limitations period, and that the limitations period could be measured from the date of Keen’s most recent bribery violation.
The Court recognized that it was a "serious error" for the prosecutor to introduce evidence of a prior conviction, but upheld the trial court’s decision not to grant a mistrial. The Court reminded the United States Attorney’s office of "the high level of conduct that has traditionally characterized [it]."
The Court rejected a claim of outrageous government conduct, pointing out that the district court gave the jury an entrapment instruction.
Turning to sentencing, the Court agreed with Keen that the sentencing court incorrectly grouped his fraud and bribery convictions. The Court rejected the government’s argument that Keen’s efforts to conceal his crime, or his violation of the "public trust," amounted to a continuation of the crime for grouping purposes. Because the incorrect grouping resulted in an erroneous six-level enhancement, the Court remanded for resentencing.
The Court rejected the argument that Keen did not qualify as an "agent" of Dixie County because he was not authorized to act with respect to the entity’s funds. The Court noted that such a narrowing reading of the term "agent" would only be needed to avoid an "absurd result." It sufficed that Keen was authorized to act on behalf of Dixie County.
The Court also rejected Keen’s statute of limitations challenge, pointing out that the government charged conduct within the limitations period, and that the limitations period could be measured from the date of Keen’s most recent bribery violation.
The Court recognized that it was a "serious error" for the prosecutor to introduce evidence of a prior conviction, but upheld the trial court’s decision not to grant a mistrial. The Court reminded the United States Attorney’s office of "the high level of conduct that has traditionally characterized [it]."
The Court rejected a claim of outrageous government conduct, pointing out that the district court gave the jury an entrapment instruction.
Turning to sentencing, the Court agreed with Keen that the sentencing court incorrectly grouped his fraud and bribery convictions. The Court rejected the government’s argument that Keen’s efforts to conceal his crime, or his violation of the "public trust," amounted to a continuation of the crime for grouping purposes. Because the incorrect grouping resulted in an erroneous six-level enhancement, the Court remanded for resentencing.
Tuesday, April 03, 2012
Reese: Ok to argue 'every woman's worst nightmare'
In Reese v. Sec., Fla. Dep’t of Corrections, No. 11-12178 (March 30, 2012), the Court denied habeas relief to a Florida inmate sentenced to death for a 1992 murder.
The Court rejected the argument that the prosecution engaged in improper closing argument when he argued that the manner of the killing was "every woman’s worst nightmare," suggested that the defendant would be released on parole absent a sentence of death, compared the defendant to a "cute little puppy" who grew up to be a "vicious dog," and urged the jury to show the defendant "the same pity" he showed the victim: "none."
The Court found no Supreme Court precedent that the Florida courts had applied unreasonably. In addition, even reviewing the prosecutor’s closing argument de novo, the Court found no improper closing. The Court found that the prosecutor "legitimately urged the jury to consider the victim’s experience" to determine whether the offense was "especially heinous." The prosecutor’s statement about the defendant’s eligibility for parole was a correct statement of the law. The "grew up into a vicious dog" comment was a proper rebuttal of defense witnesses who did not know the defendant as an adult. Reese’s counsel failed to object to the "same mercy" comment.
The Court rejected the argument that the prosecution engaged in improper closing argument when he argued that the manner of the killing was "every woman’s worst nightmare," suggested that the defendant would be released on parole absent a sentence of death, compared the defendant to a "cute little puppy" who grew up to be a "vicious dog," and urged the jury to show the defendant "the same pity" he showed the victim: "none."
The Court found no Supreme Court precedent that the Florida courts had applied unreasonably. In addition, even reviewing the prosecutor’s closing argument de novo, the Court found no improper closing. The Court found that the prosecutor "legitimately urged the jury to consider the victim’s experience" to determine whether the offense was "especially heinous." The prosecutor’s statement about the defendant’s eligibility for parole was a correct statement of the law. The "grew up into a vicious dog" comment was a proper rebuttal of defense witnesses who did not know the defendant as an adult. Reese’s counsel failed to object to the "same mercy" comment.
Price: Outcome would not have been different
In Price v. Allen, No. 09-11716 (March 30, 2012), the Court affirmed the denial of habeas relief to an Alabama death row inmate convicted of murder in1993.
The Court rejected Price’s argument that the Alabama courts erred in denying his request for a change of venue based on pretrial publicity regarding his case. The Court noted that the nine news reports upon which Price relied to show pretrial publicity were published more than a year before the trial, and did not contain a confession or any "blatantly prejudicial information."
The Court also rejected the claim that Price’s defense counsel had inadequately investigated the venue motion, finding no facts that counsel should have found.
Finally, the Court rejected the claim that counsel was ineffective at the sentencing phase, finding that the family information Price claimed should have been presented to the jury did not establish a reasonable probability that the outcome of the sentencing would have been different.
The Court rejected Price’s argument that the Alabama courts erred in denying his request for a change of venue based on pretrial publicity regarding his case. The Court noted that the nine news reports upon which Price relied to show pretrial publicity were published more than a year before the trial, and did not contain a confession or any "blatantly prejudicial information."
The Court also rejected the claim that Price’s defense counsel had inadequately investigated the venue motion, finding no facts that counsel should have found.
Finally, the Court rejected the claim that counsel was ineffective at the sentencing phase, finding that the family information Price claimed should have been presented to the jury did not establish a reasonable probability that the outcome of the sentencing would have been different.
Friday, March 23, 2012
Lewis: No Fourth Amendment Violation
In U.S. v. Lewis, No. 10-13567 (March 23, 2012) (2-1) (Wilson, J., dissenting), on a government appeal of a district court granting a motion to suppress, the Court reversed, finding no Fourth Amendment violation.
http://www.ca11.uscourts.gov/opinions/ops/201013567.pdf
Orange County, Florida police officers entered the parking lot of a restaurant, in a high crime area. They observed four males standing in between two parked vehicles, "just hanging out." The officers approached the men and asked whether any of them were carrying guns. Two of the men responded affirmatively, one saying that a firearm was on his person, and another stating that a firearm was in a backpack in the trunk of the nearby vehicle. Two others (including the defendant Lewis) said nothing. The officers immediately drew their weapons and ordered all four men to sit down on the ground and show their hands. Lewis walked a few steps away from the other men. Lewis was ordered to slide over to the other three men. He complied. Lewis looked "extremely nervous." The officers examined the ground where Lewis was previously seated and saw a semi-automatic pistol underneath a vehicle. Lewis was charged with unlawful possession of this firearm.
The Court found that based on one of the four men’s admission that he was carrying a handgun, the officers had reasonable suspicion that this person was committing a crime under Florida law: carrying a concealed weapon. The Court found that it was reasonable under the circumstances to detain Lewis. The officers faced substantial, immediate danger when confronted with the known possession of the two firearms. The officers "were entitled to control the scene and exercise command over the situation."
Dissenting, Judge Wilson stated that the circumstances permitted a pat down for weapons of those suspected of criminal activity, but there were no "specific and articulable facts" that would give rise to the inference that Lewis was engaged in criminal activity.
http://www.ca11.uscourts.gov/opinions/ops/201013567.pdf
Orange County, Florida police officers entered the parking lot of a restaurant, in a high crime area. They observed four males standing in between two parked vehicles, "just hanging out." The officers approached the men and asked whether any of them were carrying guns. Two of the men responded affirmatively, one saying that a firearm was on his person, and another stating that a firearm was in a backpack in the trunk of the nearby vehicle. Two others (including the defendant Lewis) said nothing. The officers immediately drew their weapons and ordered all four men to sit down on the ground and show their hands. Lewis walked a few steps away from the other men. Lewis was ordered to slide over to the other three men. He complied. Lewis looked "extremely nervous." The officers examined the ground where Lewis was previously seated and saw a semi-automatic pistol underneath a vehicle. Lewis was charged with unlawful possession of this firearm.
The Court found that based on one of the four men’s admission that he was carrying a handgun, the officers had reasonable suspicion that this person was committing a crime under Florida law: carrying a concealed weapon. The Court found that it was reasonable under the circumstances to detain Lewis. The officers faced substantial, immediate danger when confronted with the known possession of the two firearms. The officers "were entitled to control the scene and exercise command over the situation."
Dissenting, Judge Wilson stated that the circumstances permitted a pat down for weapons of those suspected of criminal activity, but there were no "specific and articulable facts" that would give rise to the inference that Lewis was engaged in criminal activity.
Tuesday, March 20, 2012
Romo-Villalobos: Resisting officer is "crime of violence"
In United States v. Romo-Villalobos, No. 10-15350 (March 20, 2012), the Court affirmed the 37-month sentence of a defendant convicted of illegal reentry after a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1), and for illegal reentry after conviction of false representations, in violation of 8 U.S.C. §§ 1325(a)(1) and 1329.
The Court rejected the argument that the 16-level Guideline enhancement for a reentry offender with a conviction for a prior "crime of violence" should not have applied. The Court pointed out that Florida courts interpreted Romo-Villalobos’ prior offense for obstructing a police officer as one in which violence was a necessary element of the offense. The Court rejected the argument that Florida caselaw showed that de minimis force is sufficient to establish violence under Romo-Villalobos’ Florida offense of conviction.
The Court rejected the argument that the 16-level Guideline enhancement for a reentry offender with a conviction for a prior "crime of violence" should not have applied. The Court pointed out that Florida courts interpreted Romo-Villalobos’ prior offense for obstructing a police officer as one in which violence was a necessary element of the offense. The Court rejected the argument that Florida caselaw showed that de minimis force is sufficient to establish violence under Romo-Villalobos’ Florida offense of conviction.
Tuesday, March 06, 2012
Rozzelle: Actual Innocence means more than guilt of lesser offense
In Rozzelle v. Sec. Dep’t of Corrections, No. 10-13595 (Feb. 29, 2012), the Court held that a habeas petitioner’s claim that he was guilty only of manslaughter, but not second-degree murder, did not constitute an "actual innocence" claim for purposes of creating a "gateway" to relief for a petition that is time-barred under the statute of limitations of the AEDPA. Actual innocence does not narrowly slice "the various degrees of wrongdoing."
In addition, the Court found that Rozzelle’s proof of actual innocence fell short of establishing actual innocence, because the jury heard virtually the same evidence as the new evidence Rozzelle now presented.
In addition, the Court found that Rozzelle’s proof of actual innocence fell short of establishing actual innocence, because the jury heard virtually the same evidence as the new evidence Rozzelle now presented.
Rozzelle: Actual Innocence means more than guilt of lesser offense
In Rozzelle v. Sec. Dep’t of Corrections, No. 10-13595 (Feb. 29, 2012), the Court held that a habeas petitioner’s claim that he was guilty only of manslaughter, but not second-degree murder, did not constitute an "actual innocence" claim for purposes of creating a "gateway" to relief for a petition that is time-barred under the statute of limitations of the AEDPA. Actual innocence does not narrowly slice "the various degrees of wrongdoing."
In addition, the Court found that Rozzelle’s proof of actual innocence fell short of establishing actual innocence, because the jury heard virtually the same evidence as the new evidence Rozzelle now presented.
In addition, the Court found that Rozzelle’s proof of actual innocence fell short of establishing actual innocence, because the jury heard virtually the same evidence as the new evidence Rozzelle now presented.
Monday, February 27, 2012
Owens: Alabama Second Degree Rape Not a "Violent Felon"
In U.S. v. Owens, No. 09-13118 (Feb. 27, 2012), the Court held that convictions for second degree rape under Alabama law did not qualify as "violent felonies" under the Armed Career Criminal Act ("ACCA").
The Court noted while it had decided in U.S. v. Ivory, 475 F.3d 1232 (11th Cir. 2007) that a second degree rape under Alabama law was a "crime of violence" for career offender purposes, it would be "intellectually dishonest" for the Court to adhere that ruling in light of the Supreme Court’s intervening decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).
The Court noted that in Johnson, the Supreme Court held that ACCA’s requirement of "physical force" meant "violent force." Alabama’s second degree rape offense did not require "forcible compulsion." It only required "the act of sexual intercourse [with] slight penetration" with a person of the opposite sex who is between the ages of 12 and 16. "Although this act requires physical contact, it does not require, as an element, strong physical force or a substantial degree of force." Consequently, the offense did not have as an element "the violent physical force necessary to qualify as a violent felony under the ACCA."
The Court further found that the offense did not qualify under ACCA’s residual clause. The Court reasoned that even "conceding" that the offenses met one part of the residual clause because they pose a serious potential risk of physical injury to the victim," the offenses did not meet the other part of the test, namely the requirement that offenses be "roughly similar, in kind as well as risk posed" to burglary, arson, extortion and crimes involving the use of explosives. The Court noted that, unlike these enumerated offenses, Alabama second degree rape is a strict liability offense, which has no mens rea requirement, and for which consent is not a defense.
The Court noted while it had decided in U.S. v. Ivory, 475 F.3d 1232 (11th Cir. 2007) that a second degree rape under Alabama law was a "crime of violence" for career offender purposes, it would be "intellectually dishonest" for the Court to adhere that ruling in light of the Supreme Court’s intervening decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).
The Court noted that in Johnson, the Supreme Court held that ACCA’s requirement of "physical force" meant "violent force." Alabama’s second degree rape offense did not require "forcible compulsion." It only required "the act of sexual intercourse [with] slight penetration" with a person of the opposite sex who is between the ages of 12 and 16. "Although this act requires physical contact, it does not require, as an element, strong physical force or a substantial degree of force." Consequently, the offense did not have as an element "the violent physical force necessary to qualify as a violent felony under the ACCA."
The Court further found that the offense did not qualify under ACCA’s residual clause. The Court reasoned that even "conceding" that the offenses met one part of the residual clause because they pose a serious potential risk of physical injury to the victim," the offenses did not meet the other part of the test, namely the requirement that offenses be "roughly similar, in kind as well as risk posed" to burglary, arson, extortion and crimes involving the use of explosives. The Court noted that, unlike these enumerated offenses, Alabama second degree rape is a strict liability offense, which has no mens rea requirement, and for which consent is not a defense.
Friday, February 24, 2012
In Re Grand Jury: Decryption triggers Fifth Amendment
In In re: Grand Jury Subpoena Duces Tecum dated 3/25/11, No. 11-12268 (Feb. 23, 2012), the Court held that the act of decrypting the contents of a computer hard drive is "testimonial," and therefore triggers the Fifth Amendment protection against self-incrimination.
The Court interpreted Supreme Court precedent to hold that an act of production can be testimonial when the act compels the individual to use "the contents of his own mind," and is not testimonial when an individual is merely compelled to do some physical act, or when the government can show that it already knew the contents of the materials, making any testimonial aspect of the act of production a "foregone conclusion."
The Court held that use of a decryption password to access the contents of a hard drive would be tantamount to a person’s testimony of his knowledge of the existence and location of potentially incriminating files, of his possession, control and access to the encrypted portions of the drives, and of his capability to decrypt the files. The Court found that this testimony was not a "foregone conclusion," because the government did not know whether any files existed, or whether the person was even capable of accessing the encrypted portion of the drives. "It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of date, some of which may be incriminating." The Court distinguished a case which found that the government’s knowledge of a computer file was a "foregone conclusion," pointing out that in that case the government knew the specific file name of the file it sought to decrypt.
The Court further held that the district court did not grant Doe immunity coextensive with the protections of the Fifth Amendment, and therefore could not compel Doe to turn over the encrypted contents. The immunity letter stated that the government could not use the act of production itself, but could use the contents of the encrypted drives against Doe at trial. The Court pointed out that this allowed the government to use the "evidence derived from the original testimonial statement." Thus, the immunity offered was not coextensive with the Fifth Amendment, which extends to information derived from testimony.
The Court therefore reversed the judgment of the district court holding Doe in civil contempt for failing to produce the encrypted contents of hard drives.
The Court interpreted Supreme Court precedent to hold that an act of production can be testimonial when the act compels the individual to use "the contents of his own mind," and is not testimonial when an individual is merely compelled to do some physical act, or when the government can show that it already knew the contents of the materials, making any testimonial aspect of the act of production a "foregone conclusion."
The Court held that use of a decryption password to access the contents of a hard drive would be tantamount to a person’s testimony of his knowledge of the existence and location of potentially incriminating files, of his possession, control and access to the encrypted portions of the drives, and of his capability to decrypt the files. The Court found that this testimony was not a "foregone conclusion," because the government did not know whether any files existed, or whether the person was even capable of accessing the encrypted portion of the drives. "It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of date, some of which may be incriminating." The Court distinguished a case which found that the government’s knowledge of a computer file was a "foregone conclusion," pointing out that in that case the government knew the specific file name of the file it sought to decrypt.
The Court further held that the district court did not grant Doe immunity coextensive with the protections of the Fifth Amendment, and therefore could not compel Doe to turn over the encrypted contents. The immunity letter stated that the government could not use the act of production itself, but could use the contents of the encrypted drives against Doe at trial. The Court pointed out that this allowed the government to use the "evidence derived from the original testimonial statement." Thus, the immunity offered was not coextensive with the Fifth Amendment, which extends to information derived from testimony.
The Court therefore reversed the judgment of the district court holding Doe in civil contempt for failing to produce the encrypted contents of hard drives.
Thursday, February 16, 2012
McQueen: Alien Smuggler Induced Discharge
In U.S. v. McQueen, No. 10-14798 (Feb. 15, 2012), the Court affirmed the imposition of the six-level enhancement of U.S.S.G. § 2L1.1(b)(5)(A), for the discharge of a firearm, to a defendant convicted of alien smuggling, when the discharge involved warning shots and "pepper balls" fired by Customs and Border Protection agents on a boat that was fleeing interdiction on the high seas west of Palm Beach County, Florida.
The Court noted that the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(A), encompasses conduct that the defendant "induced." The Court recognized that dictionaries typically define "induce" to mean "to lead a person by persuasion or influence." However, in U.S. v. Williams, 51 F.3d 1004, 1011 (11th Cir. 1995), the Court had attributed to a defendant the discharge he "brought about," without regard to whether he persuaded a victim to discharge a weapon. The Court concluded that it was bound by Williams to interpret "induce" to encompass a discharge of a weapon that was "reasonably foreseeable" to the defendant. "A ‘reasonable’ alien smuggler who flees law enforcement on the high seas would foresee the use of illuminated warning shots to gain compliance."
The Court noted that the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(A), encompasses conduct that the defendant "induced." The Court recognized that dictionaries typically define "induce" to mean "to lead a person by persuasion or influence." However, in U.S. v. Williams, 51 F.3d 1004, 1011 (11th Cir. 1995), the Court had attributed to a defendant the discharge he "brought about," without regard to whether he persuaded a victim to discharge a weapon. The Court concluded that it was bound by Williams to interpret "induce" to encompass a discharge of a weapon that was "reasonably foreseeable" to the defendant. "A ‘reasonable’ alien smuggler who flees law enforcement on the high seas would foresee the use of illuminated warning shots to gain compliance."
Tuesday, February 14, 2012
McGarrity: Child Porn Ring Convictions Reversed, Affirmed
In U.S. v. McGarity, No. 09-12070 (Feb. 6, 2012), in a 130-page decision, the Court affirmed some convictions and reversed others in a multi-defendant prosecution of a computer ring of child pornography users.
The Court rejected a void for vagueness challenge to the constitutionality of the statute that makes it a crime to engage in a child exploitation enterprise ("CEE"). The Court noted that the defendant clearly violated the statute by engaging in more than three violations involving sex offenses against children. In addition, even if there were instances in which certain crimes not involving minors could be CEE predicates, possible vagueness in hypothetical situations will not support a facial attack on a statute "when it is surely valid in the vast majority of its intended applications."
The Court rejected the argument that the CEE count of the indictment was defective because it failed to expressly allege that the defendants acted "in concert," an essential element of the offense. The Court held that this element could be inferred from the indictment.
The Court agreed with the defendants that one count of the indictment charging obstruction of justice was insufficient. The Court pointed out that the indictment did not specify which official proceeding was obstructed. The indictment therefore failed to give the defendants the requisite notice of the charge against them.
The Court also agreed with the defendants that the prosecutor engaged in improper direct examination of a cooperating witness when the witness was asked whether a defendant, after being indicted, ever "said that they were innocent." (Answer: no.). Any error, however, was harmless because of the overwhelming evidence of guilt, including "thousands of images and videos of abhorrent child pornography, posted on request and cavalierly bandied back and forth between the defendants." The Court also noted the district court’s instruction to the jury that the defendants’ failure to testify should not be used as evidence of guilt, and that "caution and great care" to be taken in considering the cooperating witness’ testimony.
The Court found no error under Fed. R. Evid. 404(b) in admitting one defendant’s written confession to molesting his two-year old daughter nine years earlier. The Court said the confession made the government’s case "believable but also understandable."
The Court agreed with the defense that the prosecutor engaged in improper closing argument when he said: "The victims in these videos and images, they’re . . . our daughters and granddaughters, neighbors, friends. Sometimes at night when I’m sittiing in my house . . . you can hear the crying." The Court stated: "Here there is no doubt of the impropriety of the emotional appeal." Nonetheless, the error was harmless in light of the overwhelming evidence.
Citing Richardson v. U.S., 526 U.S. 813 (1999), the Court agreed with the defense that the jury instruction on CEE erroneously failed to instruct the jury that it had to agree unanimously regarding which felony violations constituted the three predicate acts necessary to support a conviction. However, the failure to so instruct was harmless error, because the defendants (except one) were each convicted of at least three crimes that constituted predicate offenses – including conspiracy, which the Court held qualified as a predicate offense. The one defendant who was only convicted of two predicate offenses, however, could not be convicted of CEE – and the Court vacated his CEE conviction.
The Court agreed with the defendants that their convictions under two counts violated Double Jeopardy because they constituted "multiple punishment for the same offense." The Court found that the CEE enterprise offense, and the conspiracy to commit acts underlying that enterprise, were duplicative – except as to the defendant whose CEE conviction had been vacated on appeal.
Turning to sentencing, the Court rejected an Eighth Amendment disproportionality challenge to the life sentences imposed. The Court pointed out that the defendants shared more than 400,000 images and 1,000 videos "many of which showed brutal and sadistic sexual acts being committed against children of all ages and nationalities." The Court also rejected the defendants’ reliance on sentences imposed in foreign countries for like crimes: "Our laws and our Constitution, rather than those of foreign jurisdictions, control our findings."
The Court rejected one defendant’s challenge to the imposition of an obstruction of justice enhancement, pointing that when police gained access to his home, after a knock and announce and after calling a locksmith, they found the defendant next to his computer running a "wipe" program.
The Court rejected the argument that one defendant’s sexual abuse of minor decades before his conviction for child pornography could not be considered "relevant conduct" for purposes of a Guideline enhancement. A pattern of activity does not have to be temporally close to the offense of conviction. The Court rejected challenges to Guideline calculations and to the substantive reasonableness of the sentence.
Turning to the restitution award to a child pornography victim called "Amy," the court agreed with a defendant that the government must show that he "proximately caused" the harm to this victim by merely possessing child pornography images of her. The Court held that end-user defendants may proximately cause injuries to the victims of sexual child abuse, but for proximate cause to exist, there must be a causal connection between the action of the end-user and the harm suffered by the victim. The Court remanded the case to the district court for consideration of proximate cause. The Court left it to the district court to consider whether any award may be joint and several with any other defendant responsible for the harm.
The Court rejected a void for vagueness challenge to the constitutionality of the statute that makes it a crime to engage in a child exploitation enterprise ("CEE"). The Court noted that the defendant clearly violated the statute by engaging in more than three violations involving sex offenses against children. In addition, even if there were instances in which certain crimes not involving minors could be CEE predicates, possible vagueness in hypothetical situations will not support a facial attack on a statute "when it is surely valid in the vast majority of its intended applications."
The Court rejected the argument that the CEE count of the indictment was defective because it failed to expressly allege that the defendants acted "in concert," an essential element of the offense. The Court held that this element could be inferred from the indictment.
The Court agreed with the defendants that one count of the indictment charging obstruction of justice was insufficient. The Court pointed out that the indictment did not specify which official proceeding was obstructed. The indictment therefore failed to give the defendants the requisite notice of the charge against them.
The Court also agreed with the defendants that the prosecutor engaged in improper direct examination of a cooperating witness when the witness was asked whether a defendant, after being indicted, ever "said that they were innocent." (Answer: no.). Any error, however, was harmless because of the overwhelming evidence of guilt, including "thousands of images and videos of abhorrent child pornography, posted on request and cavalierly bandied back and forth between the defendants." The Court also noted the district court’s instruction to the jury that the defendants’ failure to testify should not be used as evidence of guilt, and that "caution and great care" to be taken in considering the cooperating witness’ testimony.
The Court found no error under Fed. R. Evid. 404(b) in admitting one defendant’s written confession to molesting his two-year old daughter nine years earlier. The Court said the confession made the government’s case "believable but also understandable."
The Court agreed with the defense that the prosecutor engaged in improper closing argument when he said: "The victims in these videos and images, they’re . . . our daughters and granddaughters, neighbors, friends. Sometimes at night when I’m sittiing in my house . . . you can hear the crying." The Court stated: "Here there is no doubt of the impropriety of the emotional appeal." Nonetheless, the error was harmless in light of the overwhelming evidence.
Citing Richardson v. U.S., 526 U.S. 813 (1999), the Court agreed with the defense that the jury instruction on CEE erroneously failed to instruct the jury that it had to agree unanimously regarding which felony violations constituted the three predicate acts necessary to support a conviction. However, the failure to so instruct was harmless error, because the defendants (except one) were each convicted of at least three crimes that constituted predicate offenses – including conspiracy, which the Court held qualified as a predicate offense. The one defendant who was only convicted of two predicate offenses, however, could not be convicted of CEE – and the Court vacated his CEE conviction.
The Court agreed with the defendants that their convictions under two counts violated Double Jeopardy because they constituted "multiple punishment for the same offense." The Court found that the CEE enterprise offense, and the conspiracy to commit acts underlying that enterprise, were duplicative – except as to the defendant whose CEE conviction had been vacated on appeal.
Turning to sentencing, the Court rejected an Eighth Amendment disproportionality challenge to the life sentences imposed. The Court pointed out that the defendants shared more than 400,000 images and 1,000 videos "many of which showed brutal and sadistic sexual acts being committed against children of all ages and nationalities." The Court also rejected the defendants’ reliance on sentences imposed in foreign countries for like crimes: "Our laws and our Constitution, rather than those of foreign jurisdictions, control our findings."
The Court rejected one defendant’s challenge to the imposition of an obstruction of justice enhancement, pointing that when police gained access to his home, after a knock and announce and after calling a locksmith, they found the defendant next to his computer running a "wipe" program.
The Court rejected the argument that one defendant’s sexual abuse of minor decades before his conviction for child pornography could not be considered "relevant conduct" for purposes of a Guideline enhancement. A pattern of activity does not have to be temporally close to the offense of conviction. The Court rejected challenges to Guideline calculations and to the substantive reasonableness of the sentence.
Turning to the restitution award to a child pornography victim called "Amy," the court agreed with a defendant that the government must show that he "proximately caused" the harm to this victim by merely possessing child pornography images of her. The Court held that end-user defendants may proximately cause injuries to the victims of sexual child abuse, but for proximate cause to exist, there must be a causal connection between the action of the end-user and the harm suffered by the victim. The Court remanded the case to the district court for consideration of proximate cause. The Court left it to the district court to consider whether any award may be joint and several with any other defendant responsible for the harm.
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