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.
Friday, June 29, 2012
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.
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