Eleventh Circuit Court of Appeals - Published Opinions

Thursday, February 28, 2013

Gandy: Affirming ACCA sentence

In U.S. v. Gandy, No 11-15407 (Feb. 27 , 2013), the Court rejected a challenge to the determination that a defendant’s three prior convictions qualified as “violent felonies” for purposes of the mandatory 15-year sentence under the Armed Career Criminal Act (“ACCA”).

The Court rejected the argument that the information and certified judgment of conviction for one Florida prior offense cited only a sentence enhancement provision statute number, not the number of the substantive provision governing “aggravated assault.” The Court noted that the information quoted the text of the aggravated assault statute, and this sufficed.

Citing recent precedent, the Court rejected the argument that simple vehicle flight did not qualify as a “violent felony.” The Court also rejected the argument that the “residual clause” of ACCA is unconstitutionally vague.

The Court also rejected the argument that the sentence was invalid because Gandy was incorrectly advised at his plea hearing that the statutory maximum was 10 years, when in fact he was subject to a 15-year mandatory minimum. The Court noted that at sentencing the district court gave Gandy an opportunity to withdraw his plea, and he declined to do so.

Tuesday, February 26, 2013

Turner: No ACCA relief for 2255 movant

In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as “violent felonies” for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”).

The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”

The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”

The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”

The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.

[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]

Monday, February 25, 2013

Joseph: 30 year sentence for physician who dispense drugs unlawfully

In U.S. v. Joseph, No. 09-11984 (Feb. 21, 2013), the Court affirmed the convictions and sentences of a medical physician and his assistant convicted of dispensing controlled substances to drug abusers and pushers without a legitimate medical purpose and outside the usual course of professional conduct, in violation of 21 U.S.C. § 841(a).

The Court rejected the argument that a jury instruction erroneously instructed the jury to consider whether the defendants acted “in accordance with a standard of medical practice generally recognized and accepted in the United States.” The Court found that this instruction did not suggest that defendants’ actions be evaluated against a single national standard of practice. Instead it required the prosecution to prove that the actions were inconsistent with any accepted standard of professional practice.

The Court rejected the argument that there was no probable cause to support the issuance of a search warrant, pointing out that the 39-page affidavit provided substantial evidence that evidence of crimes would be found including evidence that the physician’s patients died from drugs after he prescribed them.

The Court also rejected a challenge to the admission of testimony that many of the patients either abused their drugs or sold their drugs, rejecting the argument that this evidence was unduly prejudicial.

The Court rejected a substantive reasonableness challenge to the physician’s 30-year sentence, noting that the district court could have imposed a “much more severe sentence.”

Friday, February 22, 2013

Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation

In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U.S.C. §§ 545 and 371, failed to state an offense. The Court therefore vacated all convictions and sentences.

The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.

The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.

Tuesday, February 19, 2013

Capers: Insufficient foundation for audio recording of drug buy

In U.S. v. Capers, No 10-14332 (Feb. 14, 2013), the Court affirmed crack-cocaine trafficking convictions in a case involving co-conspirators in Coconut Grove, Florida. Because the defendants were sentenced after the Fair Sentencing Act took effect, the Court remanded for a new sentencing in light of this Act.

The Court rejected one defendant’s argument that he was merely a “petty juggler,” who purchased crack only for personal use, not for trafficking. The Court noted that he purchased large amount of crack for redistribution.

The Court rejected another defendant’s argument that the district court erroneously quashed his subpoena served on news organizations for a recording of police interviews of him. The Court found that the district court correctly quashed the subpoena because the defendant did not show that the evidence was “highly relevant” and therefore surmounted the qualified privilege for journalists. The Court also noted that the defendant could have obtained the materials from another source – the Miami Police Department.

The Court agreed that the government failed to prove that one defendant “possessed” the crack, because he was outside house in which the drug transaction took place. However, the conviction could be sustained on an aiding and abetting theory of liability, because this defendant shepherded the buyer to the house for the purpose of purchasing crack.

The Court agreed that the government failed to lay a foundation for the use of an audio recording of a drug transaction. There was no testimony about the fidelity of the audio equipment, and no independent evidence of the accuracy of the audio recordings – no agent testify that he heard the original conversation and that it was the same one that was being played at trial. The government only presented testimony that the police gave the recording equipment to the cooperating informant before the crack buy, recovered it after the buy, and gave it to a colleague for conversion to CD. But the error in admitting the audio recording was harmless in light of other evidence of the drug buy, including a video recording.

Thursday, February 14, 2013

Gibson: No Standing to challenge GPS-search of vehicle

In U.S. v. Gibson, No. 10-15629 (Feb. 14, 2013), the Court held that a defendant had standing to challenge the use of a GPS tracking device to locate a vehicle the defendant possessed – but only when the device was installed, not when the device was later used to seize incriminating evidence while the vehicle was being driven by another person

Gibson was not the registered owner of an Avalanche vehicle (it was owned by Burton), but he used it frequently. A GPS device was installed on the Avalanche without a warrant while it was parked in James Gibson’s driveway. Using the GPS, the police tracked the car making suspicious trips to Ocala, Florida, a “source city for narcotics.” The police stopped the vehicle for a traffic violation. Burton, not Gibson, was driving the Avalanche. Two kilos of cocaine were found inside.

The Court (2-1) held that Gibson lacked standing to challenge the search of Avalanche, because he was not the legal owner of this vehicle, he did not have exclusive custody or control over it, and he was neither a driver or passenger in it at the time it was searched.

Gibson had standing to challenge police testimony, based on the GPS, that Gibson was in a certain location while in possession of the Avalanche. But any error in admitting this evidence was harmless.

The Court rejected the argument that Double Jeopardy was not violated when the district court instructed the jury that it could convict a defendant for his renewed participation in a conspiracy for which he had already been convicted. The Court noted the defendant’s failure to object to this instruction, and the district court’s cautionary instruction to the jury that the defendant was not subject to multiple prosecutions for a single conspiracy. The district court instructed that the defendant liability was limited to acts performed after his first conviction, and this limitation ensured that he was not twice placed in jeopardy for the same conduct.

Tuesday, February 12, 2013

Darden: Conceding guilt not presumed to be ineffective

In Darden v. U.S., No. 10-16640 (Feb. 12, 2013), the Court held that U.S. v. Cronic (1984) does not require a court to presume that a defense counsel’s decision to concede guilt at trial on one of two robbery charges, without consulting the defendant, is ineffective assistance under the Sixth Amendment.

The Court noted that at trial “credibility must never be sacrificed.” This applies when the defendant “faces an unwinnable battle against one set of charges.” Here, Darden’s counsel conceded guilt as to one robbery “for the express purpose of preserving credibility with the jury to focus on” the other, contested, robbery. In addition, Darden vigorously stressed the lack of evidence as to the second robbery. This was not a case of counsel’s “betrayal of his client.”

The Court also found that the failure to consult with the defendant on the strategy of conceding guilt, “while certainly” among counsel’s duties, did not automatically prejudice the defendant.

Davis: Dismissal of juror "manifestly necessary"

In U.S. v. Davis, No. 12-10938 (Feb. 12, 2013),

the Court held that the district court’s declaration of a mistrial after the trial commenced, the dismissal of two jurors, and the defendant’s refusal to proceed with a jury of less than 12, was supported by the doctrine of “manifest necessity,” and consequently did not violate Double Jeopardy.

The Court found that the action that caused the mistrial – the dismissal of one of the two jurors – was “manifestly necessary.” The juror indicated that she could not understand “a lot of things” at trial. The Court noted that it was unfeasible to halt the trial when the juror raised her hand and said she did not understand: “Who would do the explaining during the trial?” Because the dismissal of one juror was sufficient to justify a mistrial (because Davis would not consent to less than 12 jurors), the Court did not reach whether the dismissal of the second juror was manifestly necessary.

The Court noted that the district court’s failure to consult with Davis before declaring a mistrial, as required by Fed. R. Crim. P. 26.3, not a dispositive factor. “Even though the court could have conducted a more formal or structured colloquy with Davis before declaring a mistrial, given the circumstances its failure to do so was not reversible error.”

Slaughter: No Suppression of statement under Harris

In U.S. v. Slaughter, No. 11-15262 (Feb. 11, 2013), the Court affirmed convictions for use of the internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).

The Court rejected the argument that the district court should have suppressed a statement Slaughter gave to police after they entered his home without a warrant, and brought him to the police station. The Court held that the statement need not be suppressed as the fruit of a poisonous entry. The police had probable cause to arrest Slaughter, and gave him his Miranda warnings at the station house. Under these circumstances, New York v. Harris (1990) does not require suppression of the statement.

The Court also rejected the argument that the district court should have severed the count that charged Slaughter as a registered sex offender from the other count. The Court recognized that the evidence that Slaughter was a registered sex offender was “prejudicial,” but the jury had already heard substantial, sexually explicit evidence that he intended to engage in sexual activity with two underage girls, and planned to meet them at a hotel room.

Finally, the Court rejected the argument that Slaughter could not be guilty of committing a felony offense involving a “minor” while being a registered sex offender, because he was not dealing with actual minors, but government agents posing as minors. The Court noted that the statute criminalizes attempts to entice minors, which does not require an actual minor.

Monday, February 11, 2013

In Re Grand Jury Proceedings No. 4-10: Required Records Exemption applies

In In Re: Grand Jury Proceedings, No. 4-10, No. 12-13131 (Feb. 7, 2013), the Court rejected the argument by targets of a grand jury investigation that their Fifth Amendment privilege against self-incrimination shielded their records of foreign bank accounts from production to the government in compliance with a grand jury subpoena. The Court held that these records were exempt from the Fifth Amendment under the Required Records Exemption.

The Court found that, although the purpose of the Bank Secrecy Act and its implementing regulations, which required persons to keep and file reports regarding their relations with foreign financial agencies, was partly in aid of criminal law enforcement, it was “essentially regulatory.” The Court also found that such records are “customarily kept.” Finally, the Court found that the records had “public aspects” which render them analogous to public documents. Consequently, the Required Records Exemption applied, and the target could not invoke the Fifth Amendment as a ground for non-compliance with the grand jury’s subpoena of its records of its foreign bank accounts.

Colon: Crack cocaine offender not 750 eligible when original sentence was already below new range

In U.S. v. Colon, No. 12-12794 (Feb. 6, 2013), the Court held that a crack cocaine offender who received a downward variance at her original sentencing could not benefit under Amendment 750 to the Sentencing Guidelines for a sentence reduction under 18 U.S.C. § 3582(c)(2).

Under Amendment 750, Colon’s new guidelines range would have been 30 to 37 months. However, as a result of an earlier downward variance, Colon’s sentence was already 27 months – below the new range.

The Court pointed out that § 3582(c)(2) provides that sentence reductions are only permitted “if . . . consistent with the applicable policy statements issued by the Sentencing Commission.” When it adopted Amendment 750, the Commission also adopted U.S.S.G. § 1B1.10(b)(2)(A), which prohibits sentences at a § 3582(c)(2) resentencing from being less than the low-end of the new guideline range, i.e., in Colon’s case, prohibited a reduction below 30 months.

The Court rejected the argument that this policy statement was an Ex Post Facto violation, pointing out that Colon was originally sentenced years before Amendment 750 and § 1B1.10(b)(2)(A). The Court also rejected the argument that the policy statement “overrides” a district court’s sentencing discretion, finding that the Commission “merely limited” the extent to which new variances can be awarded.

The Court also rejected arguments that the policy statement violated the Separation of Powers doctrine, or the Administrative Procedure Act.

Tuesday, February 05, 2013

Penney: 3.800 Motion not properly filed

In Penney v. Sec., Dep’t of Corrections, No. 10-14628 (Feb. 5, 2013), the Court held that a federal habeas petition was untimely because it was filed after the one-year limitations period under AEDPA.

The Court noted that the one-year period is tolled while a state prisoner has a “properly filed” state post-conviction motion pending in state court. Penney had filed a post-conviction motion under Fla. R. Crim. P. 3.800(c). The Court recognized that a Rule 3.800(c) motion might toll the AEDPA limitations period, but found that Penney had untimely filed this motion in Florida court, and it was therefore not “properly filed.” As a result, his federal petition was now untimely, because filed after the one-year AEDPA period expired.

Friday, February 01, 2013

Fordham:Skilling Not basis for invaliding bribe scheme

In Fordham v. U.S., No. 12-10299 (Jan. 31, 2013), the Court rejected a § 2255 challenge to convictions for defrauding a mental health center.

The defendants argued that their convictions should be vacated in light of Skilling v. U.S., 130 S.Ct. 2896 (2010), which limited “honest-services fraud” under 18 U.S.C. § 1346 to cases involving bribes and kickback schemes and not mere undisclosed self-dealing, or conflicts of interest.

The Court found that the defendants defaulted these claims by failing to raise them in the district court or on direct appeal of their convictions. The Court rejected the argument that the default could be cured because of “actual prejudice.” The Court found that the sporadic references at trial to “honest services,” and a single jury instruction on this now invalid theory, did not suffice to show prejudice. The record demonstrated that the jury was presented with evidence that they participated in a scheme involving the payment of bribes.

For the same reason, the Court rejected the argument that the defendants were “actually innocent.”