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.

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.

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."

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.

Lander: Material Variance from Indictment

In U.S. v. Lander, No. 10-10852 (Feb. 2, 2012), the Court held that proof presented at trial to support a mail fraud count materially varied from the allegations contained in the indictment. The Court therefore reversed this fraud conviction, as well as the money laundering convictions on which it was based.
The indictment alleged that the defendant falsely represented to real estate developers that they were required to pay a performance bond to him as county attorney. At trial, however, the evidence "disproved" that Lander made this misrepresentation. As a result, "the Government shifted its strategy," but its new theories did not coincide with the allegations in the indictment. As a result there was a material variance from the indictment. This variance prejudiced Lander, because the scheme the government relied on at trial was "entirely different from the one alleged in the indictment." The indictment therefore "failed to put Lander on notice of the crime for which he was convicted."
The Court rejected Lander’s sufficiency of the evidence challenge to another fraud conviction, but reversed the sentence and remanded for resentencing.

Sanders: Knowledge of Controlled Substance Suffices

In United States v. Sanders, No. 10-13667 (Feb. 2, 2012), the Court affirmed a cocaine trafficking conviction for the driver of a commercial tractor-trailor on which, hidden in rotting cabbage, 153 kilograms of cocaine were found.
The Court rejected the argument that it was Apprendi error to instruct the jury that "the defendant does not have to know specifically the nature of the particular drug that he’s possessing, but must know that it is a controlled substance." The Court explained that Apprendi error involves the amount of drugs "involved" in the offense, which the jury must find for sentencing purposes. But Apprendi leaves unchanged the defendant’s "knowledge" element, which 21 U.S.C. § 841 links to a "controlled substance." The Court distinguished United States v. Narog, on the ground that the indictment in that case charged that the defendant knew the drugs were methamphetamine. By contrast, Sanders’ indictment charged knowledge of a "controlled substance," that is, "entered into a conspiracy with intent to distribute a controlled substance, and at least five kilograms of cocaine were involved."
The Court held that the district court abused its discretion under Fed. R. Evid. 404(b) when it admitted a 22-year old conviction for selling 1.4 grams of marijuana. The Court held that because the conviction was too remote in time, and too distinct from a conspiracy to traffic in 153 kilograms of cocaine, it "had virtually no probative value." However, the error was harmless in light of the other overwhelming evidence presented at trial.

Davenport: Failure to timely challenge forfeiture order

In U.S. v. Davenport, No. 11-10743 (Feb. 3, 2012), the Court affirmed the denial of a defendant’s attempt to challenge the order of forfeiture entered in a co-defendant’s criminal case.

The Court first noted that a co-defendant lacks standing to challenge the validity of a preliminary order of forfeiture entered in another defendant’s criminal case.

The Court found that Davenport’s ancillary petition under 21 U.S.C. § 853(n), challenging the forfeiture order, was untimely. The notice of forfeiture sent to Davenport’s attorney provided adequate notice of forfeiture.

Finally, the Court found no basis for relief under Federal R. Civ. P. 60(b), finding that Davenport’s lawyer’s failure to understand the law governing adequate notice did not qualify as “excusable neglect.”

Valdiviez-Garza: Collateral estoppel precludes reprosecution

In U.S. v. Valdiviez-Garza, No. 11-10105 (Feb. 6, 2012), the Court held that the prosecution for the offense of illegal re-entry by an alien who had been previously deported, under 8 U.S.C. § 1326(a), was precluded by collateral estoppel doctrine. The Court therefore ordered dismissal of the indictment.

In a previous prosecution, Valdiviez-Garza had been acquitted of illegal re-entry. The focus of his earlier trial - as evidenced by opening statements, defense cross-examination, closing statements and jury instructions – was on the element of citizenship: specifically, whether, on account of his father’s United States citizenship, Valdiviez-Garza was himself a citizen, and therefore not an alien who could violate the illegal reentry statute. Because the jury must have acquitted because of the government’s failure to establish this element, the doctrine of collateral estoppel precluded the government’s subsequent prosecution, when citizenship was again an essential element of the charged offense.