Smith: No mens rea element required for prior drug offenses

In U.S. v. Smith, No. 13-15227 (Dec. 22, 2014), the Court rejected the argument that, for prior criminal history sentence enhancement purposes, prior drug convictions should not count as “serious drug offenses” or “controlled substance offenses,” because the prior convictions did not contain the requisite mens rea element. The Court explained that neither the statutory definition of a “serious drug offense,” nor the Guideline definition of a “controlled substance offense” expressed or implied an element of mens rea. The Court declined to presume that mental culpability was a required element, because the definitions were “unambiguous.” The Court distinguished cases that involved different definitions.

Baldwin: Rejecting Sufficiency challenges

In U.S. v. Baldwin, No. 13-12973 (Dec. 17, 2014), the Court affirmed the convictions and sentences of defendants convicted of the unauthorized use of personal identifying information to obtain fraudulent tax refunds. The Court rejected a number of challenges to the sufficiency of the evidence, relying on evidence that the fraudulent returns were submitted from the defendant’s addresses, the fraudulent activity took place within their residences, and one defendant was captured on video making an ATM withdrawal from a card that had been loaded with the proceeds of fraudulent returns. The Court rejected the argument that a constructive amendment occurred when the district court instructed the jury that “scrivener’s errors” in the last digits of the account numbers explained a discrepancy between the number charged in the indictment and the evidence at trial. The Court recognized that it might have been erroneous to allow the jury to convict as long as it found that a defendant “had used any means of identification belonging to any person.” But here the indictment charged the defendant with using names, and those charges were proven at trial. Consequently, the district court did not allow a shift in theory regarding the essential elements of the crime. The Court also rejected challenges to the sentences, finding sufficient evidence that the amount of the loss was reasonably foreseeable. The Court also affirmed the restitution order, finding that a defendant “agreed fully to participate in the broader scheme, rather than to engage in only a small handful of withdrawals.” Finally, the Court rejected the argument that the U.S.S.G. § 2T guidelines, applicable to fraudulent tax returns, instead of the § 2B guidelines, applicable generally to fraud, should have applied. The Court noted that the offense involved more than filing fraudulent tax returns, but stealing identities.

Velazco: no evidentiary hearing on counsel's ineffectiveness

In Velazco v. Dep’t of Corrections, No. 13-12525 (Dec. 16, 2014), the Court affirmed the denial of an evidentiary hearing to a habeas petitioner who claimed that counsel was ineffective for failing to investigate two defense witnesses to the murder whose credibility was impeached at trial. The Court found that the Florida courts could have reasonably concluded that Velazco failed to establish prejudice regarding his trial counsel’s failure to investigate, because these two witnesses were, in fact, helpful to the defense, and because of the overwhelming evidence that defeated his defense of self-defense.

Wilson: Counsel not ineffective for failing to present mitigating evidence

In Wilson v. Warden, No. 14-10681 (Dec. 15, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1996 murder. The Court rejected the argument that trail counsel were ineffective because they failed to investigate his background and present mitigation evidence at sentencing. The Court found that Supreme Court of Georgia could have reasonably concluded that new evidence of Wilson’s background would not have changed the overall mix of evidence at his trial. For example, evidence that Wilson was more of a follower than a leader was contradicted that he had “risen to the rank of ‘God damn chief enforcer’” of a local gang.

Cruanes: Youth Offender Act required automatic set aside of prior conviction

In U.S. v. Cruanes, No. 13-15057 (Dec. 5, 2014), the Court issued a writ of mandamus ordering a district court to set aside a defendant’s conviction as of December 1, 1983. The Court noted that under the (then effective, now-repealed) Federal Youth Corrections Act, the conviction of a youth offender is “automatically set aside” when the offender is discharged by the Parole Commission or by the court. Here, Cruanes had been discharged in 1983, but the district court never issued a certificate setting aside his conviction. The Court noted that the district court erred in ruling only the Parole Commission was authorized to issue this certificate.

Brown: Upward variance supported by depraved online chats

In U.S. v. Brown, No. 13-13670 (Nov. 25, 2014), the Court affirmed a 240-month sentence for possession and receipt of child pornography. The Court recognized that as a result of an upward variance, the 240-month sentence was well above the applicable Guidelines range of 78 to 97 months. But Brown failed to show that the upward variance was unreasonable. The Court noted the district court’s reference to the self-evident danger to society posed by Brown, as demonstrated by his “depraved” online chats and interest in the abduction, sexual molestation, murder, and cannibalization of children.

McIlwain: Prior Commitment to mental institution satisfies 922(g)(4)

In U.S. v. McIlwain, No. 14-10735 (Nov. 25, 2014), the Court held that the defendant, prior to possession of a firearm, had been “committed to a mental institution” within the meaning of 18 U.S.C. § 922(g)(4), and therefore affirmed his conviction under this statute. The Court noted that McIlwain received a formal hearing before the state probate court, was represented by counsel, and the court heard sworn testimony and made substantive findngs of fact that it included in its formal order of commitment. The Court further noted that, just as a convicted felon could not mount a collateral attack on the validity of a prior state conviction under § 922(g)1), McIlwain was not allowed to mount a collateral attack on an underlying state order of commitment under § 922(g)(4).

Tanzi: Counsel not ineffective in failing to present evidence of XYY abnormality

In Tanzi v. Sec., Fla. Dep’t of Corrections, No. 13-12421 (Nov. 19, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a murder committed in 2000. The Court rejected the argument that counsel was ineffective in failing, among other things, to present evidence of Tanzi’s XYY abnormality. The Court noted that men with XYY chromosones tend to have diminished socialization skills, but do not automatically become antisocial. The Court also noted a defense mental expert’s testimony that knowledge that Tanzi had an extra & chromosome would not have changed any of the opinions he expressed during the penalty phase. Tanzi therefore failed to satisfy the prejudice prong of Strickland’s ineffective assistance of counsel standard.

Spencer: Misapplication of Career Offender Guideline is not cognizable under 2255.

In Spencer v. U.S., No. 10-10686 (Nov. 14, 2014), the Court (en banc) (5-4) held that a defendant cannot attack a misapplication of the career offender Guideline in a collateral attack on his sentence under 28 U.S.C. § 2255. The Court first noted that it had erroneously granted Spencer a certificate of appealability, because such a certificate may only issue if the applicant has made a “substantial showing of the denial of a constitutional right.” Here, there was no underlying constitutional issue. Nevertheless, the Court declined to vacate the certificate “at this late hour,” because the matter had been litigated before a panel and was now before the en banc Court. The Court warned that it would not be so lenient in the future. Turning to the merits, the Court noted that under § 2255, a district court lacks the authority to correct a claimed sentencing error unless the claimed error constitutes a “fundamental defect” which inherently results in a “complete miscarriage of justice.” The Court held that the Guideline error Spencer alleged did not qualify as a complete miscarriage of justice. The Court pointed out that Spencer’s sentence was below the statutory maximum sentence for his offense. The sentence was therefore “lawful.” Because the Guidelines are advisory, the district court could reimpose the same sentence on remand, and the error therefore cannot be a complete miscarriage of justice. The Court noted that even if Spencer’s sentence on direct appeal would be viewed as “substantively unreasonable” – the incorrect application of the career offender Guideline nearly doubled his Guideline range, from a range of 70-87 months to a range of 151-180 months – this would not qualify as a “complete miscarriage of justice” because the sentence was still below the statutory maximum. The Court declined to equate “legal innocence” of a prior qualifying conviction under the career offender Guideline with “factual innocence,” because Spencer still committed a “serious” prior crime: felony child abuse (at the age of 18, Spencer had sex with a 14-year old). The sentencing judge could still consider the seriousness of this conviction at resentencing. The Court distinguished cases where a prior conviction had been vacated, finding that this vacatur constitutes a "new fact" with which the petitioner can challenge his sentence. Spencer merely presented an argument of "legal innocence." (Martin, J,, dissenting noted that the ruling will increase costs in the criminal justice system to the extent that the U.S. taxpayer will have to spend dozens of thousands of dollars incarcerating Spencer for time he should not be in prison). (Jordan, J., dissenting, argued that the mistaken career offender designation was a complete miscarriage of justice, noting that the 81-month increase in Spencer's sentence is roughly the time needed to complete both college and law school).

Lucas: No requirement for affirmative instruction that jury unanimity is not required for mitigating factor

In Lucas v. Warden, No. 13-11909 (Nov. 12, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders. The Court rejected Lucas’ ineffective assistance of counsel claim, finding that counsel did not fail to develop expert testimony that Lucas’ intoxication on the day of the murders rendered his confession unreliable. The Court pointed out that Lucas professed and exhibited a memory of the murders during his videotaped confession. The Court also rejected the argument that counsel failed to present Lucas life history as mitigation, finding that quite the opposite counsel presented substantial testimony of family history. The Court also rejected Lucas’ Brady claim, agreeing with the Georgia state courts that the testimony of a witness would have been cumulative at best. The Court rejected the request for a new trial based on the prosecutor’s improper statement during cross-examination during the penalty phase that prison escapes happen “every day.” The Court noted that the defense witness challenged this statement, and that the statement was “far less egregious” than what said by prosecutors in other cases in which no prejudice was held to have occurred. The Court rejected the argument that the jury should have been instructed that mitigating factors need not be found unanimously. The Court recognized that it is error to instruct a jury that it must agree unanimously on mitigating factors. But it found no requirement that an affirmative instruction must be given when the trial court has not otherwise suggested that unanimity is mandatory.

Cole: Habeas petition untimely

In Cole v. Warden, Georgia State Prison, No. 13-12635 (Oct. 6, 2014), the Court held that a habeas petition was correctly dismissed for being untimely. Cole claimed that a habeas petition filed more than fifteen years after the limitations period had expired should be deemed timely, because he only discovered a violation at his guilty plea at this time. The Court noted that the written plea form Cole signed referred to the constitutional rights that Cole claimed were not mentioned at his plea colloquy. Cole failed to establish due diligence in discovering the violation. The Court also rejected Cole’s equitable tolling argument, again finding he failed to exercise reasonable diligence.

Winthrop-Redin: Allegations of death threats to plead guilty "incredible"

In Winthrop-Redin v. U.S., No. 13-10107 (Sept. 23, 2014), the Court affirmed the denial of 2255 relief to a defendant who pled guilty to possessing cocaine with intent to distribute, rejecting the claim that the defendant was coerced to plead guilty by death threats from other members of the crew of ths ship on which the cocaine was seized. The Court found that the claim that the plea was involuntary was based only on conclusory and incredible allegations, noting that the defendant at his plea colloquy said that he was not pressured, and waited more than two years after he pled guilty to say anything about alleged threats. Further, the defendant did not specifically allege that he told his attorney about the death threats.

Reed: Failure to investigate "incredible" witness not deficient

In Reed v. Sec., Fla. Dep’t of Corrections, No. 13-10900 (Sept. 24, 2014), the Court reversed a grant of habeas relief to a Florida inmate who claimed counsel was deficient in failing to investigate and call a witness at trial. The Court noted that the witness was unavailable around the time of trial. In addition, the witness, who had eight felony convictions, admitted he had memory problems. The State court had reasonable grounds for concluding that the witness was not credible. Further, the witness’ testimony would not have directly exculpated Reed. Finally, there was substantial remaining evidence implicating Reed.

Mathis: Search of 2011 cellphone valid even if based on 2004 calls

In U.S. v. Mathis, No. 13-13109 (Sept. 24, 2014), the Court affirmed convictions of enticing a minor to engage in sexual activity, and the 480-month sentence. The Court rejected the argument that the search of Mathis’ cellphone violated his Fourth Amendment rights because the affidavit submitted in support misleadingly claimed that one could recover information from a different cellphone in 2011 evidence of a crime committed in 2004. The affidavit noted that Mathis had maintained the same phone number since 2004, and that law enforcement reasonably believed that the cell phone would contain incriminating information. Alternatively, the Court found that the police relied in good faith on the search warrant. The Court also rejected the argument that a second search of the cellphone was invalid because it occurred eight months after the expiration of the warrant’s ten-day search period. The Court noted that a search conducted after a warrant’s expiration date does not necessarily require suppression. The Court rejected the argument that the Confrontation Clause was violated when the district court admitted in evidence a non-testifying victim’s text messages. The text messages were not statements to government officers, and were not made under circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial. Turning to sentencing, the Court rejected the argument that the U.S.S.G. § 2G2.1(b)(6) enhancement for an offense involving a computer did not apply because Mathis merely used a cellphone. Deciding an issue of first impression, the Court held that the electronic high speed data processing of a cellphone meets the definition of a computer. The Court also rejected Mathis’s argument that a prior Florida conviction for lewd or lascivious conduct with a minor did not qualify as the basis for a aggravating sentence enhancement, because the offense did not require actual touching. The court noted that 18 U.S.C. § 2251(e) merely requires a prior offense “relating to” sexual abuse of a minor.

Kirk: "Remaining in" burglaries qualify as ACCA predicates

In U.S. v. Kirk, No. 13-15103 (Sept. 16, 2014), the Court held that prior burglary offenses counted as violent felonies under the Armed Career Criminal Act (ACCA). The Court rejected the argument that because the Florida burglary statute criminalized merely “remaining in” a structure with the intent to burglarize, as distinct from “entering” the premises, it did not qualify as a “violent felony.” The Court cited contrary Supreme Court and Circuit precedent involving “remaining in” burglaries, involving the “same risks” of injury. The Court also rejected the argument that the prior convictions were not committed on occasions different from one another. “[T]he charging documents submitted by the government show that Kirk pled guilty to burglarizing seven different dwellings, located at seven different addresses and owned by seven different people, on or about separate dates.” Finally, the Court rejected the argument that the government failed to prove that it is unconstitutional for a federal statute to punish purely intrastate conduct like firearm and ammunition possession that “substantially affected” interstate commerce. The Court cited precedent holding that a “minimal nexus” of the firearm being manufactured outside the state satisfied the jurisdictional element of § 922(g), which in turn defeated a challenge to the statute’s constitutionality.

Samak: 2255 savings clause does not apply

In Samak v. Warden, FCC Coleman, No. 13-12161 (Sept. 10, 2014), the Court affirmed the denial of habeas relief, holding that the savings clause of 28 U.S.C. § 2255(e) did not authorize Samak to file a habeas petition under 28 U.S.C. § 2241. Samak claimed that the district court did not have authority to impose a life sentence without a jury recommendation for his violation of the Organized Crime Control Act (OCCA). The Court noted one requirement for the § 2255 savings clause to apply is that an argument be foreclosed by circuit precedent. Here, to the contrary, “binding Fifth Circuit precedent at the time of sentencing actually supported his claim that he should not have been sentenced to life imprisonment.”

Bates: Prayer did not prejudice trial

In Bates v. Sec., Fla. Dep’t of Corrections, No. 13-11882 (Sept. 5, 2014), the Court denied habeas relief to a Florida inmate sentenced to death for a 1982 murder. The Court rejected Bates’ claim that his trial counsel was ineffective for failing to object to an opening prayer, delivered in the presence of the jury, by a minister of the church where, trial testimony later showed, the victim’s funeral service was held. Bates claimed that this prayer urged the jury to improperly base its verdict on divine wisdom and guidance instead of the evidence adduced at trial. Rejecting this claim as speculative, the Court declined to fault trial counsel for failing to move for a mistrial. The Court also rejected the argument that the sentencing jury should have been informed of the defendant’s parole ineligibility. The Court noted that this is required only where the defendant is, as a matter of law, absolutely ineligible for parole, and the State places his future dangerousness at issue.

Green: No 3582(c)(2) sentence reduction for crack cocaine offender held accountable for 32.1 kilos

In U.S. v. Green, No. 12-12952 (Sept. 4, 2014), the Court affirmed the denial of a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) for a defendant convicted of crack cocaine trafficking. Green claimed he was eligible for a sentence reduction based on amendments to the crack cocaine Guidelines that took effect after his original sentencing. The district court denied relief because it found that at the original sentencing it had held Green accountable for a drug quantity in excess of 10 kilograms, and as much as 32.1 kilograms – quantities for which no reduction would apply under the amended Guidelines. The Court noted that since a § 3582(c)(2) resentencing is not de novo, a district court may not make any new finding inconsistent with a finding it made in the original sentence proceeding. Thus, here the district court properly clarified that it had held Green accountable for 32.1 kilograms of cocaine base. The Court also rejected Green’s reliance on a statement it had made about the drug quantity in an earlier appeal in his case. The Court found that it had merely assumed that a Guideline amendment lowered Green’s guideline range, he was still not entitled to a sentence reduction. But this assumption by the Court did not subsequently bind the district court.

Campbell: Not Credit for Overhead in Loss Amount Calculation

In U.S. v. Campbell, No. 12-11952 (Sept. 3, 2014), the Court affirmed the conviction and sentence of a defendant convicted of defrauding the State of Alabama of several million dollars through a fraudulent institute. The Court rejected the argument that the “loss amount” that was the basis for a sentence enhancement should have been reduced, based on the legitimate services his institute rendered to the State of Alabama. The Court found ample support in the record that the institute “was a sham organization which served no legitimate purpose.” The Court rejected Campbell’s argument that the government should have sifted through years of bank records and itemized every single transaction that should be chalked up as a loss to the victim. “When, as here, a defendant’s conduct was permeated with fraud, a district court does not err by treating the amount that was transferred from the victim to the fraudulent enterprise as the starting point for calculating the victim’s pecuniary harm.” The Court noted that the district court correctly granted a partial credit for legitimate services rendered by the institute. The Court added, however, that Campbell was not entitled to a credit for the operating expenses of the institute, because many of these expenditures played some role in perpetuating the scheme.

Godwin: No error in dismissal of jurors

In U.S. v. Godwin, No. 13-10184 (Sept. 3, 2014), the Court affirmed convictions for RICO racketeering and RICO conspiracy, in violation of 18 U.S.C. §§ 1962(c) & (d). The Court rejected the argument that the district court, before the trial commenced, erroneously dismissed a juror who had been selected to serve on the jury. The Court noted that the juror was visibly distraught about having to serve on a four and half-week trial away from her 14-month old son. The Court also rejected the argument that the district court, during jury deliberations, erroneously dismissed a juror who, according to all other jurors, was refusing to follow the judge’s instructions. The Court noted that this was a proper ground for dismissal, so long as there was no substantial possibility, as here, that the juror was basing her decision on the sufficiency of the evidence. The Court also rejected one defendant’s challenge to the sufficiency of the evidence, pointing out that his sale of a diamond stolen during a home invasion was “money laundering,” because it was designed to promote the ultimate objective of the conspiracy – to turn jewelry into cash. Although the defendant “was not a bona fide, dog-tag wearing member of the organization,” he helped the gang commit various crimes.

Haynes: Invited error where defendant appeals the very sentence he invited

In U.S. v. Haynes, No 12-12689 (Aug. 22, 2014), the Court held that the doctrine of “invited error” precluded Haynes from challenging his categorization as a “career offender” in a separate sentence on a separate case from the one for which the district court amended his sentence at resentencing. Haynes was charged with a total of five crimes, in two separate federal prosecutions. He pled guilty to all five crimes in one proceeding, and was sentenced at a single sentencing proceeding. After an unsuccessful appeal, Haynes filed a § 2255 motion, arguing that one of his sentences exceeded the statutory maximum, and further arguing that he was erroneously sentenced as a career offender. At his resentencing, the district court announced that it agreed that one sentence exceeded the statutory maximum, and defense counsel acknowledged that the court was “not going to touch the other case.” Defense counsel urged the court to impose a 322 month sentence. The district court imposed a 322-month sentence. On appeal, the Court refused to entertain the challenge to the career offender designation. The Court noted that defense counsel had remarked that the district court would “not . . . touch the other case,” and would not now fault the district court for abiding by counsel’s request. Further “defense counsel herself proposed the amended sentence lengths.” “Because Haynes appeals the very sentence he invited the resentencing court to impose, we decline to review the alleged errors.”

Therve: No abuse of discretion in granting mistrial after hung jury

In U.S. v. Therve, No. 13-11879 (Aug. 20, 2014), the Court affirmed a bribery conviction, rejecting the argument that the district court abused its discretion in denying a mistrial at the conclusion of a first trial after the jury was unable to agree on a unanimous verdict, with all but one juror in favor of finding Therve not guilty. The Court found that the following circumstances supported the judge’s decision to declare a mistrial: (1) the jury had deliberated to deadlock in two separate periods of deliberation, including one after receiving an Allen charge; (2) despite the two periods of deliberation, the jury said that had it had been split in the same way since the very beginning; (3) the judge believed the jury to be truthful in its assessment that it was hung; (4) the trial was short and straight-forward; and (5) the judge suggested that he thought that making the jury continue to deliberate after the second note following the Allen charge was coercive. The Court noted that it did not agree with the judge’s decision to reveal to the parties the jury’s numerical split (a split the jury revealed despite a specific instruction not to do so), but held that this did not render improper an otherwise sound decision to declare a mistrial.

Troy: Exclusion of evidence of prison conditions not reason for granting habeas relief from death sentence

In Troy v. Sec., Fla. Dep’t of Corrections, No. 13-10516 (Aug. 15, 2014), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 2001 murder. The Court rejected the argument that, at the penalty phase of the trial, the trial court erroneously testimony from a corrections officer about general conditions for those serving life sentences in Florida prisons. The Court held that, to date, Supreme Court precedent does not require a sentencer to consider this type of testimony. The Court noted that even if the State’s cross-examination of a witness suggested that Troy might use drugs in prison while serving a life sentence, the witness Troy wanted to call “could only speculate about possible incarceration outcomes.” The Court further noted that even if error occurred, it was harmless, because Troy was able to present considerable mitigating evidence, which the jury rejected in light of the aggravating evidence presented. [Martin, J., concurring, stated that de novo review, rather than AEDPA deference, applied to the issue, because it was unclear how Supreme Court precedent applied. However, the concurrence found no basis for granting habeas relief because it agreed with the majority that any error would have been harmless.]

Barsoum: Affirming Oxycodone trafficking conviction and sentence

In U.S. v. Barsoum, No. 13-10710 (Aug. 15, 2014), the Court affirmed the conviction and sentence of a defendant convicted of unlawfully dispensing Oxycodone out of several pharmacies. The Court rejected Barsoum’s challenge to the number of pills for which he was held accountable at sentencing. The Court found no clear error in the district court’s estimate of the number of pills, based on average frequency and the number of pills Barsoum sold over a one-year period. The Court also rejected the argument that statements should not have admitted as non-hearsay co-conspirator statements under Federal Rule of Evidence 801(d). The Court found that the testimony at issue did not relay any out-of-court statement and therefore was not hearsay. Further, the government had sufficiently established the existence of a conspiracy for purposes of Rule 801(d), and the statements at issue were made in furtherance of this conspiracy.

Payne: Alleyne error "harmless" because of uncontroverted evidence of brandishing

In U.S. v. Payne, No. 13-15699 (Aug. 15, 2014), the Court held that the district court committed Alleyne error when it imposed an 84-month mandatory minimum sentence based on its finding that a firearm was brandished during a bank robbery, but the error was harmless because of the “uncontroverted evidence” that a firearm was in fact brandished. Payne pled guilty to bank robbery and to possession of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). However, at sentencing, citing Alleyne, Payne objected to the imposition a mandatory consecutive minimum term of 84 months, under § 924(c)(1)(A)(ii), for the brandishing of a firearm. Overruling this objection, the district court relied on evidence at the sentencing hearing that a pistol was pointed at a bank teller during the robbery by one of the robbers, and imposed a consecutive 84-month sentence. The Court noted that because Payne did not admit to the brandishing of a firearm, the district court committed Alleyne error when it made its own brandishing finding. However, Alleyne error, like Apprendi error, was subject to “harmless error” review. Here, the evidence of the brandishing was uncontroverted. Hence, the error was harmless.

Hayes: Sentence of Probation Substantively Unreasonable for defendant who paid $600,000 in bribes

In U.S. v. Hayes, No. 11-13678 (Aug. 12, 2014) (2-1), the Court held that the district court imposed a substantively unreasonable sentence when it imposed a term of probation and no term of incarceration on a defendant who pled guilty to of giving $600,0000 in bribes to a state official to ensure that his company would continue to receive government contracts. The defendant’s guideline range was 135-168 months. The government recommended a substantial assistance downward departure, which would have resulted in a 57-71 months range. At sentencing, after noting the need to avoid unwarranted sentencing disparity, the district court sentenced Hayes to three years’ probation. Though acknowledging “the institutional superiority that district courts possess with regard to sentencing,” the Court vacated the sentence as substantively unreasonable. The Court found that the possibility of unwarranted sentencing disparity did not justify sentencing Hayes to probation, pointing out that of the similarly situated persons identified in a chart prepared by the probation office, the one most closely situated to Hayes – the state official who took his bribes – received a sentence of 78 months. Four of the five others received prison terms, and the only one who did not was responsible for just $300,000 in losses, half of the amount of money Hayes was ordered to pay in restitution.

Madison: No Batson Violation for Alabama Death Row Inmate

In Madison v. Comm., Ala. Dept. of Corrections, No. 13-12348 (Aug. 4, 2014), the Court affirmed the denial of habeas relief to an Alabama death row inmate sentenced to death for a 1985 murder, rejecting the claim of a Batson violation during jury selection. The Court reviewed deferentially the findings of the district court, after an evidentiary hearing, regarding the Batson findings. The Court noted that Madison had put forward a “strong” prima facie case of purposeful discrimination against black jurors. Nonetheless, the Court deferred to the district court’s findings that the reasons for striking black prospective jurors were race-neutral.

Wright: No Brady claim when defense had equal access to information

In Wright v. Sec., Fla. Dept. of Corrections, No. 13-11832 (Aug, 4, 2014), the Court affirmed the denial of habeas relief to a Florida death row inmate convicted of a 1983 murder. The Court rejected a Brady claim that statements by witnesses were not provided to the defense. The Court noted that a defendant cannot prevail under Brady where he had ‘equal access” to the information forming the basis of the claim. Here, the defense had access to the information in the statements. The Court also rejected an ineffective assistance of counsel claim regarding a “glass vase”, pointing out that defense counsel effectively pointed out that the prosecutor had misstated a witness’ testimony.

Mendoza: Counsel not ineffective in investigating mitigating evidence

In Mendoza v. Sec., Fla. Dept of Corrections, No. 13-14968 (July 31, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1992 murder. The Court rejected the argument that trial counsel performed a deficient investigation of mitigating evidence, noting that counsel “thoroughly” investigated Mendoza’s mental health, and hired three experts to evaluate Mendoza’s mental health. The Court also rejected the argument that the defense should have put on evidence that Mendoza had a substance abuse problem, pointing out that this argument is a “two-edged sword.”

Roy: Defense Counsel's Absence from Trial during presentation of inculpatory evidence is Cronic error

In U.S. v. Roy, No. 12-15093 (Aug. 5, 2014) (2-1), the Court reversed the defendant’s convictions for possession of child pornography, holding that the absence of defendant’s trial counsel during a critical stage of trial when inculpatory evidence was admitted against him violated the Sixth Amendment. At Roy’s trial, evidence admitted to prove that Roy knowingly possessed photographs of a minor engaged in sexually explicit conduct was presented to the jury during his lawyer’s absence from the courtroom. The Court explained that “[t]he absence of counsel during the presentation of inculpatory evidence used by the government to convict the defendant eliminates the opportunity to decide whether to lodge an objection and how to frame an objection, as well as the ability to conduct cross-examination.” The Court held that this constituted error under U.S. v. Cronic. Pointing out that “Cronic error is structural error,”the Court noted the practical difficulties of discerning the harmlessness of the error in the denial of counsel during the presentation of inculpatory evidence. The Court reversed the convictions without engaging in harmless error analysis. The Court held that even though defense counsel did not object once he returned to the courtroom, Cronic error is not subject to plain error review, and defense counsel could not have known what evidence he missed, as he was absent. The Court rejected the dissent’s argument that the Cronic error did not affect all the counts of conviction, pointing out that the counts in this case were “interrelated.” The Court also rejected the argument that defense counsel’s absence was “opportunistic.” “Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court and bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licences to practice law in jeopardy by, as the dissent suggests, strategically slipping out of the courtroom when the judge is not looking and when they think inculpatory evidence is coming.”

Taylor: No habeas relief because no Due Process violation in exclusion of defense evidence

In Taylor v. Sec., Fla. Dep’t of Corrections, No 12-12112 (July 28, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1988 murder. The Court rejected the argument that Taylor’s due process rights were violated when the trial court did not allow him to present evidence that the murder victim occasionally used or purchased crack cocaine, which would have corroborated Taylor’s defense that the victim consented to sex on the night of her murder. The Court noted that the testimony had no direct bearing on the issue of sexual consent, and would not have materially supported Taylor’s defense. The Court also rejected the argument that defense counsel was ineffective for having Taylor reenact the crime on the witness stand. The Court noted that Taylor did not in fact physically reenact the crime, and counsel’s tactical choices were not constitutionally deficient.

Watkins: Husband's limited Consent does not vitiate wife's full consent

In U.S. v. Watkins, No. 12-12549 (July 28, 2014), the Court held that Georgia v. Randolph, which held that, under the Fourth Amendment, the contemporaneous objection of a person who shared common authority over a home prevented a search when one person with authority had consented, the fact that defendant had given only a limited consent to a search of his computers did not vitiate the valid, full consent that his wife gave to search these computers – a search that uncovered child pornography images. The Court noted that the defendant did not voice any objection when his wife consented to the search. His actions fell “well outside Randolph’s conception of an objection.” The Court pointed out that Randolph created only a “narrow exception” to the doctrine that a person with common authority over premises has authority to consent to a search.

DeBruce: Complete omission of mitigating evidence was prejudicial to Alabama death row inmate

In DeBruce v. Comm., Ala. Dep’t of Corrections, No. 11-11535 (July 15, 2014), the Court (2-1) (Tjoflat, J., dissenting) granted habeas relief to an Alabama inmate sentenced to death for a 1991 murder. The Court found that DeBruce’s trial counsel at the penalty phase of his case was constitutionally ineffective in limiting his mitigation investigation to speaking with DeBruce and his mother and not to further investigate DeBruce’s mental health and background. The Court noted that counsel did not have a strategic reason for not doing the mitigation work, and explained that he got into the case “too late” to do so. The Court noted that DeBruce’s competence to stand trial was not a basis for a strategic decision to forego pursuit of mitigation evidence at the penalty phase. Trial counsel also failed to pursue the inconsistencies between DeBruce’s mother’s account of his being a successful student and information that he had in fact dropped out of school in the seventh grade. The Court found that the failure to investigate prejudiced DeBruce, because the sentencing jury heard nothing of the daily beatings DeBruce suffered at the hands of his older sister, his resistance to joining gangs despite their assaults and intimidation, the pervasive violence in his neighborhood, or his struggles in school and his low-average intelligence. The “complete omission” of this type of evidence was prejudicial.

Jeanty: Alleyne not basis for 2241 habeas relief

In Jeanty v. Warden, FCI-Miami, No. 13-14931 (July 15, 2014), the Court held that a federal habeas petitioner under 28 U.S.C. § 2241 could not rely on Alleyne v. U.S. to attack the district court’s failure to submit to a jury the question of whether he had a prior conviction that qualified him for a mandatory minimum sentence. The Court explained that the Supreme Court had not made Alleyne apply retroactively on collateral review. Further, the ten-year sentence fell below the statutory 40-year maximum for Jeanty’s drug trafficking crime. Finally, the Alleyne Court took pains to point out that its holding did not upset its previous ruling in Almendarez-Torres that the fact of a prior conviction is not an element that must be found by a jury.

Rodriguez: Conjugal visits not material

In Rodriguez v. Sec., Fla. Dep’t of Corrections, No. 11-13273 (June 30, 2014), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for three 1984 murders. The Court rejected Rodriguez’ claim that detectives testified falsely about conjugal visits that a cooperating State witness was allowed. The Court agreed with the Florida courts that this evidence “lacked materiality.” The Court also noted the defense’s “withering cross-examination” of this witness. The Court also rejected a claimed Brady violation involving the withhold of two letters that would have cast doubt on a prosecution witness. The Court concluded that the letters were “not material.”

Lambrix: Not error to decline to appoint habeas counsel for futile claim

In Lambrix v. Sec., Fla. Dep’t of Corrections, No. 13-11917 (June 26, 2014), the Court affirmed the denial of appointment of counsel to a Florida death row inmate whose prior habeas petitions had been denied, and rejected his argument that his latest petition was not futile under Martinez v. Ryan. The Court noted that Martinez held that there was no procedural default when there was cause for a habeas petitioner’s prior failure to raise an ineffective assistance of counsel claim. Lambrix, however, did not fail to previously raise an ineffective assistance of counsel claim – he did so, unsuccessfully. For this (and other reasons) his current claim was futile, and the district court did not err in declining to appoint counsel to pursue a futile claim.

Malone: Alleyne error is harmless

In U.S. v. Malone, No. 12-15092 (June 26, 2014), the Court affirmed the sentence imposed on a defendant convicted of drug trafficking and failure to appear at trial. Toward the end of a lengthy jury trial in1990, Malone did not show up for trial. The trial continued in his absence, and the jury convicted Malone of a drug conspiracy. Twenty-two years later, in 2012, Malone was extradited from Ecuador, and brought for sentencing for his earlier drug trafficking conspiracy, and for a failure to appear charge – to which he pled guilty. The district court imposed a 240-month mandatory minimum sentence on the 1990 drug conspiracy conviction, based on its finding that the offense involved more than 5 kilos of cocaine and therefore triggered this mandatory minimum. The district court also imposed a consecutive 22-month sentence for Malone’s failure to appear at trial. Citing Alleyne, the Court agreed with Malone that, in light of the absence of jury findings regarding drug quantity at the 1990 trial, it was error for the district court to impose a sentence based on its own findings as to drug quantity. However, the error was harmless, because Malone had stipulated at the 1990 trial to a quantity greater than 5 kilograms. The Court rejected the argument that there was a conflict of interest in representation in light of defense’s counsel representation of a co-defendant at the trial in 1990. The Court noted Malone’s failure to demonstrate any alternative defense strategy that he could have pursued. The Court rejected as “invited error” Malone’s claim on appeal that, because his punishment for his failure to appear was already accounted for by a Guidelines sentence enhancement, he should not have been subject to a consecutive sentence for this failure. The Court noted that in the trial court Malone’s counsel stated that Malone was subject to “additional” punishment on account of the failure to appear. Finally, the Court rejected Malone’s complaint about an incomplete appellate record, pointing out that he was responsible, by having stayed on the run for 22 years, for the record being lost in that long interval.

Insignares: Habeas Petition after new judgment is not "second or successive"

In Insignares v. Sec., Fla. Dep’t of Corrections, No. 12-12378 (June 23, 2014), the Court affirmed the denial of habeas relief to a Florida inmate convicted of attempted murder. The Court agreed with Insignares that because the State trial court entered a new sentence, and therefore a new judgment, after Insignares filed a first federal § 2254 habeas petition, his subsequent federal § 2254 habeas petition which challenged the new judgment was not “second or successive” for purposes of AEDPA limitations. Turning to the merits, the Court rejected Insignares’ ineffective assistance of counsel claim, finding the representation to be neither deficient, nor to have prejudiced his defense.

Ramirez-Gonzales: enticing a child for indecent purposes is "sexual abuse of a minor" for Guidelines purposes

In U.S. v. Ramirez-Gonzalez, No. 13-13703 (June 23, 2014), the Court rejected the argument that a defendant’s prior Georgia conviction for enticing of a child for indecent purposes did not qualify as “sexual abuse of a minor” for purposes of a 16-level enhancement under USSG § 2L1.2, for a defendant convicted of illegal re-entry into the United States. The Court explained that the Georgia offense fell within the definition of “sexual abuse of a minor” that includes “both physical and nonphysical misuse and maltreatment of a minor for the purposes of sexual gratification.” The Court rejected a substantive reasonableness challenge to the sentence, pointing out that the district court issued a considerable downward variance to negate the potential sentencing disparities that could have resulted from the 16-level enhancement on the facts of the case, and the resulting 52-month sentence was below the Guidelines range of 70-87 months, and well below the 20-year statutory maximum.

Doughtery: Flight in Colorado one week after Georgia robbery not "immediate"

In U.S. v. Dougherty, No. 12-16540 (June 20, 2014), the Court reversed the imposition of a six-level sentence enhancement for assaulting an officer during “immediate flight” from an offense, but otherwise affirmed the 428-month sentence on defendants who went on a Georgia crime spree, and fled to Colorado, where they fired on chasing police before being apprehended with cash from a bank robbery, and firearms and ammunition, in the trunk of their vehicle. The Court noted that USSG § 3A1.2 authorizes the imposition of a six-level enhancement if a defendant is accountable for the assault on a law enforcement officer during “an immediate flight” from an offense. Dougherty, however, assaulted an officer in Colorado one week after a bank robbery in Georgia. His assault therefore was no during an “immediate flight” from the robbery, and the six-level enhancement did not apply. The Court rejected the challenge to the imposition of a two-level sentence enhancement based on substantial risk of death or serious bodily injury during flight under § 3C1.2. The Court pointed out that this enhancement (unlike § 3A1.2) did not require immediacy. And each defendant could held accountable for this conduct: one defendant drove recklessly, another fired shots at pursuing police officers, and a third pointed a pistol at an officer. The Court rejected one defendant’s argument that his sentence should not have been enhanced under § 3C1.1 on account of his attempt to flee from jail in Colorado. The Court found the enhancement applicable because the escape occurred before trial or sentencing. Finally, the Court rejected substantive reasonableness challenges to the 428-months sentences, noting the “compelling” reasons given by the district court for its upward departure: the numbers of firearms involved, the number of civilians put at risk, and the defendants’ significant criminal history.

Houser: Affirming Health Care Fraud Conviction based on failure to provide nursing home services

In U.S. v. Houser, No. 12-14302 (June 19, 2014), the Court affirmed the conviction and sentence of a defendant charged with committing health care fraud by failing to provide required services at nursing homes. The Court found that it need not address whether the concept of “worthless services” is unconstitutionally vague when used to define health care fraud, because it was affirming the conviction based on “the nursing facilities’ complete failure to provide some necessary services.” The Court found that House “sought reimbursement from Medicare and Georgia Medicaid for required services – pharmaceutical, diagnostic, medical and dietary – that simply were not provided.” The Court rejected the argument that the government failed to show Houser’s “willfulness” in failing to pay payroll taxes. “Although Houser made frequent visits [to the IRS] the evidence reveals that those visits were an effort to stave off further investigation and prosecution, as opposed to an effort to correct an innocent mistake.” The Court similarly rejected Houser’s claim that his failure to file a federal tax return was not willful.

Vandergrift: Rehabilitation not valid basis for sentence on revocation of supervised release

In U.S. v. Vandergrift, No. 12-13154 (June 18, 2014), the Court affirmed a 24-month term imposed upon revocation of supervised release. Recognizing a Circuit split on the issue, the Court held that it was not plain error for the district court to rely on § 3553(a) factors like the seriousness of the offense when revoking supervised release, even though these factors are not included in the list of factors a district court should consider when deciding whether to revoke supervised release. The Court agreed with Vandergrift that the district court committed Tapia error when it considered rehabilitation as a basis for imposing a 24-month sentence. The Court noted that Tapia “prohibits any consideration of rehabilitation when determinng whether to impose or lengthen a sentence of imprisonment.” On plain error review, however, the Court found that this error did not affect Vandergrift’s substantial rights, because the sentencing court’s “primary considerations were for the safety of the public and deterring others from similar conduct.”

Boyd: Latest 2255 motion not second or successive

In Boyd v. U.S., No. 11-15643 (June 18, 2014), the Court (Tjoflat, J. & Moore & Schlesinger, b.d.), the Court reversed the dismissal of a federal inmate’s motion under 28 U.S.C. § 2255. Boyd had filed several prior motions under § 2255, but the Court explained that his latest one was not “second or successive” and therefore limited by AEDPA, because they were filed after one of his prior state convictions was vacated, and therefore raised an argument he could not have raised before. In addition, two of Boyd’s prior § 2255 motions were not reviewed on the merits, but dismissed (erroneously) for being second or successive. These prior § 2255 motions therefore did not make the latest one second or successive.

Serrapio: Affirming modification of probation for defendant convicted of threatening to kill the President

In U.S. v. Serrapio, No. 12-14897 (June 18, 2014), the Court affirmed the constitutionality of a modification of conditions of probation imposed on a defendant convicted of having threatened to shoot the President of the United States. The district court originally imposed a sentence of probation that included four months home confinement with electronic monitoring. Serrapio did not violate the conditions of probation, but was quoted in a news article stating that his ordeal had been “pretty funny” and that the attendance at his rock band’s show benefitted because people came out to see the kid who threatened to kill the President. The district court thereupon modified the terms of probation to include 45 days in a halfway house, and a year of home confinement with electronic monitoring. On appeal, the Court held that the propriety of the new 45 days of halfway house condition was moot, because Serrapio had already served this term. Turning to the increase in the home confinement from four months to one year, the Court held that because Serrapio had not finished this term his appeal of this was not moot because theoretically he could ask for a refund of the cost of electronic monitoring. The Court held that the modification of probation was valid, because the statute authorized the modification. The modification did not violate Double Jeopardy, because Serrapio did not have a legitimate expectation of finality in the 4-month term, since the district court had the authority to modify it. The Court rejected the argument that the modification of probation violated Serrapio’s First Amendment rights because it was based on statements he had made. The Court noted that the statements suggested that Serrapio “did not really understand the gravity of his offense.”

Henry: Hall v. Florida is not retroactive

In In re; John Ruthell Henry, No. 14-12623 (June 17, 2014) (2-1) (Martin, J., dissenting), the Court denied the application of a Florida inmate, sentenced to death on account of a 1985 murder, for a second or successive federal habeas petition, because the Supreme Court’s recent decision in Hall v. Florida, which held that a State could not set an IQ of 70 as a hard cut-off for purposes of determining death penalty eligibility, announced a new rule of constitutional law which was not retroactively applicable. The Court pointed out that the Supreme Court in Hall made no mention of retroactivity, and held that Hall does not place a class of individuals beyond the state’s power to execute, but “merely provides new procedures for ensuring that States do not execute members of an already protected group.” The Court also pointed out that Henry’s application lacked merit, because he could not point to any IQ test yielding a score of 75 or below.

Cubero: Affirming 151-month child pornography sentence

In U.S. v. Cubero, No. 12-16337 (June 11, 2014), the Court affirmed the 151-month sentence imposed on a defendant who pled guilty to one count of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and two counts of possession of child pornography, in violation of § 2252(a)(4)(B). The Court rejected Cubero’s Guidelines “double counting” argument. Cubero argued that because the base offense level for his § 2252(a)(2) distribution offense already took account of the act of “distribution,” he should not have been subject to a two-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(F), for “distribution.” The Court pointed out that the guideline offense level applied to “receiving,” or “reproducing” child pornography, other means of violating § 2252(a)(2). Hence, it was “appropriate” for the Sentencing Commission to establish a two-level enhancement for distribution, and no double counting occurred. The Court summarily rejected the argument that Cubero should have received a two-level reduction for an offense that was limited to the receipt or solicitation of child pornography. The Court pointed out that Cubero used a peer-to-peer file-sharing network to distribute child pornography. The Court also rejected Cubero’s substantive reasonableness challenge to his sentence. The Court noted that the sentencing court relied on a significant number of factors under § 3553(a), including the “horrific” titles of the child pornography files, and that “relevant differences existed between Cubero’s case and the cases cited by Cubero as comparable ‘downward variance’ cases.”

Folk: Affirming Felon in Possession conviction

In U.S. v. Folk, No 12-15126 (June 12, 2014), the Court affirmed a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The Court did not address Folk’s argument that the firearms found in his residence fell outside the scope of the warrant because it sustained the seizure of the firearms on the alternative ground that the firearms were in plain view during a SWAT team’s protective sweep of a home during a search for narcotics. The Court also rejected Folk’s Batson challenge to the government’s peremptory strike of an African-American juror, crediting the trial court’s finding that the government has a “sincere” reason for striking the juror from the pool, namely that the prosecutor had trouble hearing the juror’s answers, and the jury had a friend who was on multiple years’ probation. Finally, the Court rejected Folk’s challenge to the sufficiency of the evidence of possession, pointing out that Folk routinely used the firearm to go hunting, and continued to assert his ownership of the firearm during conversations from jail.

Davis: Fourth Amendment protects cell site location informaton

In U.S. v. Davis, No. 12-12928 (June 11, 2014), the Court held that “cell site location information” – cell phone tower-based information about where a person is located when he places or receives a cell phone call – is within a cell phone subscriber’s reasonable expectation of privacy, and that the government violates the Fourth Amendment when it obtains this information from a cell phone provider without a warrant. The Court analogized cell site location information to the tracking of a person’s whereabout through a GPS, which the Supreme Court held in Jones was subject to Fourth Amendment protection. The Court held, however, that in Davis’ case the police relied in good faith on a federal statute, 18 U.S.C. § 2703, that permitted obtaining cell site location information based on a court order without probable cause. Citing U.S. v. Leon, the Court therefore did not apply the exclusionary rule to the cell phone records. The Court recognized that the prosecutor engaged in improper bolstering during closing argument when he told the jury that a witness told the same story to the jury that “he has told me one hundred times.” But the Court noted that the trial judge instructed the jury to ignore these comments, and the jury is presumed to follow a judge’s instructions. Turning to sentencing, the Court agreed with Davis that the seven-year portion of his 1,941 month-sentence for multiple Hobbs Act and firearm violations was invalid, because the jury made no finding of “brandishing,” as recently required by Alleyne. The Court noted that the evidence that Davis brandished a firearm was not overwhelming. The Court rejected Davis’ claim that his sentence was cruel and unusual, in violation of the Eighth Amendment. The Court noted that Davis’ crimes were “numerous and serious.” Finally, the Court rejected Davis’ claim that there was insufficient evidence of his advance knowledge that an accomplice would use a firearm during one of the robberies, as recently required by Rosemond v. U.S. for aiding and abetting liability. The Court noted that the jury could infer that Davis “saw the gun in the car” as he and his accomplices were driving to commit a robbery, and could also have inferred knowledge based Davis’ participation in prior robberies, or that he assisted in planning this robbery.

Rodriguez: Eleventh Circuit Declaration of Emergency contemplated by Congress

In U.S. v. Rodriguez, No. 12-14629 (June 5, 2014), the Court (Anderson, Moody & Schlesinger, b.d.), held that General Order No. 41 of the Chief Judge of the Court, entered on December 30, 2013, declaring that an emergency exists during which the determination of cases may be conducted by panels composed of a majority of judges who are not members of the Court, was “clearly contemplated by Congress in 28 U.S.C. § 46(b).” The Court reasoned that, like the illness of a judge that makes him unavailable, the vacancies on the Circuit (the Circuit is authorized to have 12 circuit judges but has only eight, with four vacancies), together with the Circuit’s “heavy case load,” qualifies as an “emergency contemplated by Congress.” The Court cited the “precedent” of two prior Fifth Circuit emergencies declared in like circumstances.

King: Affirming 1,062 month sentence for string of armed robberies

In U.S. v. King, No. 12-16268 (June 9, 2014), the Court affirmed convictions for a string of armed robberies, and a sentence of 1,062 months. The Court rejected the argument that the government failed to present sufficient evidence that the gun King brandished during the robbery was capable of firing a projectile, noting that victims of the robberies testified that the weapon was “thrust directly in their faces.” The Court rejected the argument that the jury should have been given an instruction that “people may have greater difficulty in accurately identifying members of a different race.” While recognizing that in some cases such a “cross-racial identification” instruction might be appropriate, the Court found that the facts did not warrant this instruction in this case, noting that King did not cross-examine any of the witnesses to determine whether they had difficulty making cross-racial identifications. The Court agreed with King that, in light of the Supreme Court’s decision in Alleyne, it was error to convict King of brandishing a firearm in violation of § 924(c) without submitting the “brandishing” issue to the jury. However, the error was harmless in light of the “extensive evidence that king brandished a firearm.” The Court rejected the argument that the issue whether King’s firearm convictions were “second or subsequent” should have been presented to the jury. The Court found that, under Almendarez-Torres, it was proper for the district court to decide this question. Finally, the Court rejected King’s challenge to the reasonableness of his 1,062-month sentence, noting the district court’s observations about his lack of remorse and his likelihood to recidivate.

Brown: Mere omission of an element of an offense does not render indictment jurisdictionally defective

In U.S. v. Brown, No. 13-10023 (May 28, 2014), the Court rejected the argument of a defendant who pled guilty to receiving counterfeit money orders that her conviction was invalid because the indictment failed to allege the “knowingly” mens rea element of the offense. The Court rejected the argument that the failure of an indictment to allege an essential element of an offense was a non-waivable, jurisdictional defect. The Court explained that an indictment is jurisdictionally defective only when, even accepting the factual allegations of the indictment as true, these allegations fail to state a violation of a statute. When this occurs, the indictment fails to allege a criminal offense against the laws of the United States. But an indictment’s mere omission of an element of an offense does not fail to invoke the district court’s subject matter jurisdiction.

Flanders: Life Sentences for Sex Traffickers

In U.S. v. Flanders, No. 12-10995 (May 27, 2014), the Court affirmed convictions and life sentences for defendants charged with drugging victims and filming them in sex acts to distribute on the internet, in violation of sex trafficking statutes. The Court rejected challenges to the sufficiency of the evidence. The Court noted that the jury could conclude from the videos that the women were drugged and did not engage in sex acts voluntarily. In addition, a defendant benefitted from the scheme when he sold the videos. The Court rejected the argument that the prosecutor in closing argument improperly commented on the defendant’s silence, finding that instead the prosecutor said that the defendant lied to the police. The Court also rejected a challenge to the district court’s decision to close the doors of the courthouse during closing arguments. The Court pointed out that the doors were closed only during closing argument, and credited the district court’s explanation that it had to do so in order to limit distractions to the jury. Turning to the sentences, the court found error in the district court’s application of the wrong Guidelines in grouping the offenses, but the error did not affect the defendant’s substantial rights because the correct grouping calculation would have yielded the “exact same” result. The Court affirmed the district court’s imposition of an upward departure based on the “unusually heinous” nature of the crimes, pointing out that the defendants “filmed the sexual encounters and then distributed those videos in DVDs and over the Internet.”

Mozie: Affirming Life Sentence for Child Sex Trafficking

In U.S. v. Mozie, No. 12-12538 (May 22, 2014), the Court affirmed the child sex trafficking convictions and life sentence imposed on Mozie. The Court rejected Mozie’s argument that the “reckless-disregard-of-the-victim’s age” standard of the child sex trafficking statute so lowered the standard of proof as to render the statute unconstitutionally vague. The Court pointed out that the term is a familiar legal concept. The Court rejected the argument that the district court constructively amended the indictment. The indictment charged that Mozie both knew and recklessly disregarded the fact that his victims were under 18 years old. The district court instructed the jury that it could convict Mozie if it found either that he knew the victims were under 18 or recklessly disregarded this fact. The Court reiterated the well-settled rule that no constructive amendment occurs when an indictment charges in the conjunctive and jury instructions charge in the disjunctive. Turning to the sentence, the Court rejected Mozie’s argument that his sentence was substantively unreasonable. “Simply stated, ‘sexual abuse is grossly intrusive in the lives of children and is harmful to their normal psychological, emotional, and sexual development in ways which no just or humane society can tolerate.’” (quoting Kennedy v. Louisiana, 554 U.S. 407, 468 (2008) (Alito, J., dissenting)). The Court also rejected Mozie’s Eighth Amendment challenge to his sentence, pointing to evidence that he struck and chocked one victim, and essential kidnapped others.

Isaacson: Investor's loss not "reasonably foreseeable" for loss amount calculation purposes

In U.S. v. Isaacson, No 11-14287 (May 22, 2014), the Court affirmed a conviction for securities fraud, but vacated the sentence. The Court rejected the argument that Isaacson’s conviction for violating 18 U.S.C. § 371 should be vacated because the investments were made through a hedge fund based in the British Virgin Islands. The Court pointed out that the conviction could stand even in light the presumption against extraterritorial application of a statute, because Isaacson’s office was in Florida and hte securities were sold on American markets. The Court also rejected a claimed Speedy Trial Act violation. Isaacson’s argue that the trial commenced more than 70-day deadline, based on the date in-court jury selection began. Rejecting this argument, the Court pointed out that potential jurors began filling out written questionnaires within the 70-day deadline. The Court held that absent evidence the trial court was manipulating the timing of written juror questionaires to skirt the Speedy Trial Act deadline, the jurors’ answers to written questionnaires would count as the commencement of trial for Speedy Trial Act purposes. Turning to the sentence, the Court noted that Isaacson participated in a fraud against auditors who were auditing a fraudulent investment fund. Isaacson did not participate in fraudulently convincing an investor, Morgan Stanley, to invest in the fund. The fact that Morgan Stanley made the investment before the auditors signed off on the financial reports of the fund indicates that Morgan Stanley “made its investment decision entirely independent of any audit reports.” Consequently, the loss attributable to Morgan Stanley’s investment, though part of the overall conspiracy, was not “reasonably foreseeable” to Isaacson for purposes of the Relevant Conduct guideline. The district court therefore erred in including this loss in the loss amount for Guideline enhancement purposes, and in the restitution amount as well. Finally, the Court rejected Isaacson’s Rule 33 motion for a new trial based on the prosecutor’s failure to disclose that his wife was a lawyer at the law firm representing an accomplice. The Court noted that the prosecutor’s wife had no financial interest in a good outcome for the accomplice, and therefore no grounds for recusal – and no reasonable probability the outcome would have been different had the alleged conflict of interest been disclosed.

Ramirez: Affirming Conviction and Sentence for mortgage fraud

In U.S. v. Rodriguez, No. 10-12065 (May 15, 2015), the Court affirmed the conviction and sentence of a defendant convicted of mortgage fraud. The Court rejected the argument that Rodriguez was not competent when she pled guilty. The Court cited the plea colloquy which showed Rodriguez’ competency to understand her plea. Turning to sentencing issues, the Court rejected the argument that, on plain error review, that Rodriguez should not have been subject to an enhancement for an offense involving 10 or more victims, since only seven victims were entitled to restitution. The Court pointed out that the number of victims is not determined based on restitution. The Court also rejected the argument that Rodriguez was entitled to a minor role sentence reduction. The evidence demonstrated that Rodriguez “performed an essential role in the mortgage fraud scheme.” Turning to restitution, the Court found that Rodriguez herself was partly to blame for the delay in the district court’s entry of a restitution order, and could not, in any event, complain of the delay. The Court affirmed the district court’s calculation of the restitution amount.

Esquenazi: Definining an FCPA "Instrumentality"

In U.S. v. Esquenazi, No. 11-15331 (May 16, 2014), the Court affirmed convictions under the Foreign Corrupt Practices Act (FCPA) for conduct involving payments by a Florida company to Haitian officials of the Haitian telecommunications company owned by the Haitian government. The defendants claimed that the telephone company in Haiti did not qualify as an “instrumentality” of the Haitian government, and that the jury instructions were erroneous on the definition of an “instrumentality.” Rejecting this argument after a lengthy analysis, the Court concluded that the jury instructions were not erroneous. Further, the evidence was sufficient to show an “instrumentality” because the telephone company was a nationalized monopoly of Haiti, whose director was chosen by the Haitian President. The Court also rejected the argument that the defendants lacked the requisite “knowledge” that the recipient of their payments was a foreign official. The Court pointed out that they purchased a “political-risk insurance policy” in connections with their transactions, and knew that they were dealing with a state-sanctioned monopoly. The Court also rejected a Brady claim based on statements made by a Haitian official after the defendants were convicted. The Court pointed out that information known to an independent foreign government is not imputed to prosecutors in the United States simply because that government cooperates in the investigation. The Court also rejected the argument that the money-laundering count merged into the underlying bribery counts. The Court noted that funneling money through shell corporations was not necessary to the bribery, but just made it less likely that the conduct would be uncovered – the distinct conduct that the money laundering offense covers. On plain error review, the Court rejected the argument that the value of the “benefit received” should have measured by the amount of the bribe, not by the amount of the benefit to the defendant’s company. The Court found nothing in its caselaw to support this argument.

Chahla: False Permanent Residency statement can support unlawful naturalization conviction

In U.S. v. Chahla, No. 13-12717 (May 21, 2014), the Court affirmed convictions of three brothers from Syria of unlawful procurement of United States citizenship or naturalization, and conspiracy. The Court rejected the argument that convictions for unlawful procurement of citizenship or naturalization could not stand because the false statements they made involved applications to become Lawful Permanent Residents, not for citizenship. The Court recognized that in some situations, such as a person who becomes a Lawful Permanent Resident but never applies for citizenship, or only does so many years after obtaining Lawful Permanent Residence, a false statement made in connection with Lawful Permanent Residence might not suffice to establish unlawful procurement of citizenship. But here the defendants sought to naturalize as soon as they were eligible. Consequently, their fraudulent statements (relating to the validity of their marriage to an American spouse) in their Lawful Permanent Resident applications were made with the intent to procure naturalization.

Harrell: Judge unduly participated in plea discussion

In U.S. v. Harrell, No. 11-15680 (May 14, 2014), the Court affirmed the convictions and sentences for two Hobbs Act and two § 924(c) firearm offenses, for a defendant who was convicted by a jury after a trial; the Court reversed the conviction of another defendant who pled guilty, because the district court impermissibly participated in the parties’ plea negotiations. During repeated colloquies with the defendant, the district court contrasted the sentence the defendant would receive if he went to trial compared to the less severe sentence he would receive if he pled guilty. The defendant ultimately pled guilty based on the prosecutor’s agreement to a lesser sentence – the lesser sentence that the district court had proposed. The Court held that, under the recent decision in U.S. v. Davila, 133 S.Ct. 2139 (2013), the district court actions constituted “plain error.” The defendant arrived ready for trial, and the district court “shaped the more favorable plea agreement.” “We realize that the district court was acting in what it believed to be [the defendant’s] best interests, and was concerned about the lengthy sentence it would have to impose if [he] was found guilty by a jury. Nevertheless, there is no good motives exception to the bar on judicial participation in plea discussions.” The Court vacated the conviction, and remanded the case to a different district court judge, to give the defendant an opportunity to withdraw his plea. The Court agreed with the defendant who took the case to trial that it was error for the district court to allow a government agent to testify as an expert on communications by cell phone over cell phone towers, because the government failed to establish, by a preponderance of the evidence, that the agent was qualified to be an expert. The error, however, was harmless in light of the overwhelming evidence.

Anderson: Counsel not ineffective in investigating mitigating evidence

In Anderson v. Sec., Fla. Dep’t of Corrections, No 11-13921 (May 12, 2014), the Court affirmed the denial of a writ of habeas corpus to a Florida inmate sentenced to death for a 1999 murder. The Court rejected Anderson’s claim that his trial lawyer failed to conduct a reasonable investigation of mitigation evidence. The Court rejected the argument that trial counsel failed to investigate evidence of Anderson’s suffering sexual abuse as a child, pointing out that previously Anderson actively denied that such abuse had ever occurred. The Court found that Anderson’s counsel had conducted an extensive investigation in preparation for the guilt and penalty phase of the trial. The Court also found that Anderson had not established that the evidence of sexual abuse, had it been presented to the jury, would have prompted the jury to recommend a life sentence instead of death.

Massam: No "victim" when the loss is "intended loss" not "actual loss"

In U.S. v. Massam, No. 12-15924 (May 6, 2014), the Court held the loss amount calculated at sentencing for a defendant convicted of embezzlement is not reduced by any “credit” on account of moneys returned to a victim, because the loss was based on “intended loss,” not “actual loss.” The Court explained that the Guidelines define a “victim” as a person who sustained any part of the “actual loss.” “Actual loss” is defined a harm that resulted from the offense. A “victim” therefore does not exist when there is only intended loss. “A thief cannot return money that he never succeeded in stealing.”

Henry: Habeas petitioner failed to show cause and prejudice

In Henry v. Warden, No. 12-16552 (May 2, 2014) (2-1, Wilson, J. dissenting), the Court affirmed the denial of habeas relief to a Georgia death row inmate. The Court found that Henry had not established “cause and prejudice” for failing to raise an issue in the state courts – a claim that a holdout juror had been improperly removed from the jury. The Court found that Henry’s appellate counsel in state court acted in an objectively reasonable manner when he decided not to investigate the claim, and faulted Henry for failing to raise the issue adequately in his subsequent federal habeas proceedings.

Parton: Sebelius does not overrule Circuit precedent on child pornography

In U.S. v. Parton, No. 13-12612 (April 30, 2014), the Court (Anderson; Ebel & Ungaro, bd.), rejected the argument that the Supreme Court’s recent decision in Nat’l Fed. of Independent Business v. Sebelius had effectively overruled prior Circuit precedent regarding how little of an interstate nexus the government had to show under the Commerce Clause in child pornography cases. The Court explained that Sebelius addressed the Commerce required when commerce is being “compelled” by the government, not, as here, the production of child pornography.

Lugo: Untimely federal habeas petition

In Lugo v. Sec. Fla. Dep’t of Corrections, No. 11-13439 (April 24, 2014), the Court held that the habeas petition of a Florida death row inmate was time-barred, and not subject to equitable tolling. The Court recognized that during a certain time period, the actions of Lugo’s counsel were disturbing, this conduct mostly occurred during a time period when the AEDPA statute of limitations was already tolled. [Concurring, Judge Martin cited statistics showing that 8% of Florida death row inmates miss the AEDPA deadline for filing habeas petitions, and discussed possible solutions to this problem, notably the timely appointment of federal habeas counsel].

Jeffries: Suspect credibility regarding mailing

In Jeffries v. U.S., No. 13-10730 (April 23, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 on the ground that it was untimely. Jeffries claimed that he timely filed a supplement to his § 2255 motion. However, the prison employee in charge of the mailroom at the prison testified that there was no entry under Jeffries’ name in the mailroom book log on the date Jeffries claimed he mailed his supplement. In addition, Jeffries’ credibility was suspect because he claimed to have mailed his original § 2255 motion certified mail, but did not do so with his purported supplement mailing.

Tellis: Career offender not eligible for Amendment 750 reduction

In U.S. v. Tellis, No. 12-12596 (April 18, 2014), the Court affirmed the denial of a sentence reduction under 18 U.S.C. § 3582(c)(2) for a defendant serving an 188-month sentence for conspiracy to sell crack cocaine. The Court found that the PSR at Tellis’ original sentencing stated that Tellis was a career offender. The Court noted that while Tellis’ sentence was previously reduced pursuant to Guideline Amendment 706, because it was in effect based on his drug quantity level, the more recent Guideline Amendment, Amendment 750, did not apply because Tellis’ career offender guideline range was now higher than his drug offense level. The Court reaffirmed prior Circuit precedent which rejected the argument that the Supreme Court’s decision in Freeman had abrogated the rule that career offenders are not eligible for retroactive reductions to the crack cocaine guidelines.

Fowler: Sentencing Package requires repackaging after vacatur

In U.S. v. Fowler, No. 12-15818 (May 21, 2014), the Court rejected the argument that a district court, on resentencing, was not authorized to re-impose a life sentence. As the result of his murder of a Florida police officer, Fowler was originally convicted of witness-tampering in violation of 18 U.S.C. § 1512(a)(1)(C) and using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). At sentencing, the district court imposed a Guidelines life sentence on the witness-tampering count, and a mandatory 10-year consecutive sentence on the § 924(c) count. The witness-tampering conviction was ultimately dismissed after the Supreme Court ruled that the witness-tampering statute required a “reasonable likelihood” that the victim would make a communication to a federal law enforcement officer. At resentencing, the district court imposed a life sentence on the § 924(c) count. Fowler challenged the life sentence on appeal, claiming that the district court lacked authority to increase his sentence on the § 924(c) count from ten years to life. The Court rejected this argument, pointing out that the Court “on direct appeal, without hesitation and as a matter of course, vacated entire sentences and remanded for resentencing on all surviving counts.” “The sentence package that has been unpackaged by a reversal is to be repackaged at resentencing using the guidelines and the § 3553(a) factors.” The Court rejected Fowler’s reliance on “outmoded” cases involving vacaturs under § 2255. The Court also rejected Fowler’s reliance on the “aggregate remainder approach” of U.S. v. Monaco, 702 F.2d 860 (11th Cir. 1983). Under this approach, a district court, after vacatur of one of several counts, was not authorized under North Carolina v. Pearce to increase the total sentence attributable to all remaining counts. The Court noted that Monaco was a pre-Guidelines case, and held that it was not applicable to “package sentences” under the Guidelines. The Court explained that the North Carolina v. Pearce presumption of vindictiveness only arose when the total sentence was increased. Here, the original sentence was life, and the new sentence was also life. Moreover, the sentence was not “vindictive” because the district court explained that it would never have imposed a ten-year sentence on the § 924(c) count in the absence of a life sentence on the other count.

Ransfer: Testimony summarizing investigation can raise serious concerns

In U.S. v. Ransfer, No. 12-12956 (April 14, 2014) (Martin, Jordan & Baylson by designation), the Court found insufficient evidence to support convictions for one Hobbs Act robbery, but otherwise affirmed the convictions of defendants convicted of a series of robberies of businesses in Florida. As in its recent decision in U.S. v. Smith, 741 F.3d 1211 (11th Cir. 2013), the Court rejected the argument that the district court should have suppressed evidence obtained as a result of the warrantless installation of a GPS tracking device on a vehicle to track the vehicle’s movements. The Court explained that the police in good faith relied on long-standing Circuit precedent, prior to the Supreme Court’s decision in U.S. v. Jones, that it did not violate the Fourth Amendment to install an electronic device on the outside of a vehicle without a warrant. Because the error would have been harmless in light of other evidence admitted at trial, the Court did not reach the merits of whether it was erroneous to allow a police officer to testify at length, based on hearsay information he gathered during the investigation, about how the investigation proceeded. The Court noted in a footnote that other Circuits “have raised serious concerns with overview witnesses, when an introductory prosecution witness summarizes the findings of an investigation, thereby “painting a picture of guilt before the evidence has been introduced.” The Court found any error would have been harmless because each hearsay statement by the police officer was presented through other evidence, so the jury “would likely have reached the same verdict if [the hearsay testimony] had been excluded.” Turning to the sufficiency of the evidence with regard to one defendant who was charged with acting as a lookout for the robberies, the Court found that the text messages between this defendant and other defendants, the video surveillance, cell phone records, and the fact that his repeated presence at the scene of the robberies could not have been an “innocent coincidence.” As to one robbery, however, the Court found insufficient evidence, because there was no evidence that this defendant was ever inside the store that was robbed, and evidence of his presence in the vicinity was insufficient to convict him for aiding and abetting the robbery.

Davila: Magistrate Judge's "Highly Improper" Comments did not pressure guilty plea

In U.S. v. Davila, Nos. 10-15310 & 11-10224 (April15, 2014), on remand from the Supreme Court, see U.S. v. Davila, 133 S.Ct. 2139 (2013) (a court’s improper participation in plea discussions does not by itself demand automatic vacatur of a plea), the Court held that in light of the “full record” Davila had not established prejudice from a Magistrate Judge’s comments encouraging him to plead guilty, and therefore affirmed the conviction. The Court noted that it was reviewing the issue for plain error because Davila did not object to the Magistrate Judge’s comments. The Court noted that it applied the contemporaneous objection rule even in situations where counsel may have no desire to object. Further, TDavila did not object during the months when he represented himself pro se. The Court noted that the Magistrate Judge’s remarks encouraging Davila to plead guilty constituted error, and the error was plain. But the Court found that the error did not affect Davila’s substantial rights. Citing its recent decision on a similar issue in U.S. v. Castro, the Court determined that Davila pled guilty “to shorten the duration of his inevitable sentence.” Davila stated at his change-of-plea hearing that no one pressured him to plead guilty. The Court found some merit in Davila’s claim that his plea was a “desperate gambit” when everyone seemed aligned against him, but ultimately found that he pled guilty “simply because he had negotiated a better deal” than was initially offered. The Court also noted the lapse of time between the Magistrate Judge’s comments and the guilty plea. Though recognizing that the Magistrate Judge’s comments regarding the desirability of a guilty plea were “emphatic and highly improper,” the Court found that this was not enough to show prejudice, in light of the full record.

Osley: Counsel not ineffective in failing to advise of mandatory minimum

In Osley v. U.S., No. 11-14989 (April 11, 2014), the Court affirmed the denial of a motion under 28 U.S.C. § 2255 that alleged that counsel was ineffective in failing to advise the defendant during plea negotiations that his sex trafficking of a minor offense carried a statutory mandatory minimum. During plea negotiations, Osley was informed that there was no mandatory minimum sentence for his offenses, a statutory maximum of life, and that the prosecution would ask for an 80 months sentence if he pled guilty, which would result in Osley facing as little as 59.5 months with good behavior. In reality, unbeknownst to Osley, because of a recent change in the statute, Osley was subject to 15-year mandatory minimum. Osley declined the plea offer and went to trial. The jury convicted him on all counts. At sentencing, Osley was subject on an advisory Guidelines sentence of 210- 262 months. Based on the nature of the crime and Osley’s lack of remorse, the Court varied upward and imposed a 365 months sentence. Rejecting Osley’s claim that his defense counsel was ineffective for having failed to inform him of the 15-year statutory minimum, the Court pointed out that Osley turned down a plea offer with a much lesser sentence. The Court said it was hard-pressed to accept the claim that Osley would have accepted a 15-year sentence, even had he known about this statutory minimum. The Court further noted that Osley could not establish that the district court would have accepted the lesser sentence, noting that the district court would necessarily have vacated a plea agreement that recommended a sentence below a mandatory minimum. The Court also found that Osley did not establish that his sentence would have been less severe, pointing out that the district court likely would have learned of the egregious circumstances surrounding the crime in the PSI, and therefore imposed as severe a sentence as it did after trial. The Court also rejected the claim that counsel was ineffective in failing to advise Osley that he was subject to a life term of supervised release, pointing out that Osley still went to trial knowing that he faced a life sentence. Finally, the Court rejected the claim that counsel was ineffective in failing to object to “double counting” in the imposition of separate enhancements, one based on a Guideline cross-reference, another based on a Guideline specific characteristic, that accounted for the harm Osley caused. The Court found that one enhancement was for “sexual abuse of the victim,” and the other was for the “aggravated nature of that abuse.” In addition, even if double counting occurred, this would not have changed the result because the district court would have imposed the same sentence even without the alleged double counting.

Rodriguez: State must serve Appendix on habeas petitioner

In Rodriguez v. Fla. Dep’t of Corrections, No. 12-10887 (April 7, 2014), the Court held that the State is required to serve on a habeas petitioner the exhibits included in the Appendix referenced in the State’s answer. The Court rejected the argument that the Appendix was not an “attachment” or an “exhibit’ to the Answer. The Court pointed out that the Attorney General referenced the documents “because they were relevant to her argument,” and the Answer therefore depends on the Appendix’s referenced documents to support and lend meaning to the arguments it presents.

Grzybowicz: Distribution requires more than sending images to oneself

In U.S. v. Grzybowicz, No. 12-13749 (April 4, 2014), the Court affirmed two child pornography convictions and reversed a third one. The Court rejected Grzybowicz’s challenge to the sufficiency of the evidence for producing and possessing child pornography in violation of 18 U.S.C. § 2252A, noting that it would have been utterly contrary to the evidence for the jury to have found that the photos at issue were not a “lascivious exhibition of the genitals or pubic area.” The Court, however, found merit in Grzybowicz’s challenge to the sufficiency of the distribution count. The Court noted that Grzybowicz sent images from his cellphone to his computer. Thus “there is no evidence that Grzybowicz sent the images of child pornography to anyone other than himself.” The images on the computer were not stored in a shared folder accessible to other and were not uploaded to any publicly accessible website. Noting that “[w]e do not commonly speak of delivering to ourselves things that we already have,” the Court distinguished cases involving allowing access to images on a computer through a peer-to-peer program.

Travis: Vehicular Flight is a "Crime of Violence"

In U.S. v. Travis, No. 13-10400 (April 4, 2014), relying on Sykes v. U.S., held that vehicle flight in violation of Fla. Stat. § 316.1935(1) constitutes a crime of violence for purposes of the career offender sentencing guideline. The Florida statute, like the one at issue in Sykes, required nothing more than using a vehicle to flee after an officer has ordered the driver to stop. The Court held that even though § 316.1935(1) violations do not involve high speeds or other reckless conduct, they are an inherently risky enterprise because they can end in violent confrontations between the offender and police. They therefore qualify as offenses presenting “a serious potential risk of physical injury to another.”

Brown: Magistrate Judges Lack Statutory Authority to Enter Final Judgment in 2255 cases

In Brown v. U.S., Nos. 11-15149 & 12-10293 (April 7, 2014), the Court held that entry of final judgment on a motion to vacate a sentence under 28 U.S.C. § 2255 falls outside the grant of statutory authority to Magistrate Judges delegated in 28 U.S.C. § 636(c). Declining to reach the issue whether Article III of the Constitution prohibits a Magistrate Judge from entering final judgment on a § 2255 motion, the Court analyzed at length the history of the magistrate system and Supreme Court caselaw regarding Magistrate Judge authority. The Court noted that Magistrate Judges are appointed by District Courts, and would not be expected to evaluate the District Courts’ conduct at trial in a § 2255 motion. The Court also noted that it was constitutionally troublesome for Magistrate Judges to exercise a Judicial Power reserved for Article III courts. The Court therefore vacated the Magistrate Judge’s order denying Brown’s § 2255 motion and, expressing no views on the merits of Brown’s underlying claims for § 2255 relief, remanded the case to the District Court for disposition.

Feliciano: Credibility is for the jury to decide

In U.S. v. Feliciano, No. 12-15341 (April 3, 2014), the Court agreed with the government’s concession that the evidence was insufficient to support a conviction for using a firearm during a bank robbery, in view of the lack of evidence that Feliciano possessed a firearm during the robbery – but affirmed convictions on all other counts. The Court rejected Feliciano’s challenge to the credibility of the cooperating witnesses who testified against him. Though noting that there was a valid basis for these credibility challenges, the Court concluded that the issue of credibility was ultimately for the jury to decide. The Court agreed with Feliciano that the district court improperly denied him his request for expert assistance in interpreting an MRI and establishing that his back injury made it impossible for him to have been the bank robber who jumped over a teller window. But the Court found that the denial of this assistance did not have a substantial and injurious effect on the jury’s verdict, pointing out that a doctor testified at trial that Feliciano was not physically capable of jumping over the teller window. The Court rejected Feliciano’s claim that the district court erred in allowing a portion of a phone call between him and his brother to be played during the government’s rebuttal case, without the brother being on the stand, after the brother had testified at trial. Feliciano argued that the call should not have been admitted as substantive evidence, and without the brother being present. The Court noted that Rule 613(b) does not specify a particular sequence for the admission of a prior inconsistent statement. Further, the statement was actually exculpatory, so was not substantive evidence against Feliciano. The Court found no reversible error in the prosecutor’s statement in closing argument that the jury had not seen recent MRIs – knowing that the district court had denied Feliciano’s request for expert assistance in receiving a recent MRI. The Court noted, however, that “[t]his conduct does not meet the standard we expect of United States prosecutors.” [Dissenting from this portion of the decision, Judge Pryor faulted the majority for “nitpick[ing]” the prosecutor’s closing argument.

Jones: No Prejudice in failure to put on mitigating evidence

In Jones v. GDCP Warden, No. 11-14774 (March 20, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for a 1979 murder, findingthat Jones could not satisfy the “prejudice” prong of his ineffective assistance of counsel claim. Jones claimed that his counsel was ineffective for failing to introduce at the penalty phase evidence of his childhood and mental health. The Court pointed out that had counsel gone down this route, the State could have introduced strong aggravating evidence, including Jones’ “damning record from prison and the military.” The Court found the state habeas court’s rejection of the opinions of Jones’ experts to be reasonable, given their lack of reliability.

Salgado: Money Laundering Guideline calculation should not take account of underlying offense

In U.S. v. Salgado, No. 12-15961 (March 14, 2014), the Court reversed a sentence because the district court, in calculating the offense level for a money laundering offense, “mistakenly considered the defendant’s role in the drug conspiracy that generated the dirty money.” Because Salgado was convicted of heroin trafficking and money laundering, his sentence was calculated based on the Guidelines’ grouping rules., which indicated that his sentence should be based on the money laundering guidelines. The Guidelines also provide that when a sentence is calculated based on the money laundering Guidelines, USSG § 2S1.1, other sentence adjustments are based on the Guidelines for that offense, and not for the underlying offense from which the funds were laundered. Despite this instruction, the district court increased the offense level for money laundering based on Salgado’s significant role in the drug trafficking offense. The Court rejected the government’s argument that failing to take account of the fact that a defendant played a significant role in a drug offense when sentencing for money laundering would result in defendants convicted of both crimes receiving lighter sentences than defendants convicted only of the drug offense. The Court pointed out that this was incorrect, because the grouping rules require courts to use the highest offense level of the counts in the group after factoring in sentence adjustments for each count. The Court also rejected the argument that sentencing courts are required to consider “all relevant conduct.” The Court pointed out that the Relevant Conduct Guideline begins with the words “unless otherwise specified.” The Application note with regard to money laundering “does specify otherwise.”

Terrell: Counsel for Georgia death row inmate not ineffective

In Terrell v. GDCP Warden, No. 11-13660 (March 11, 2014), the Court affirmed the denial of habeas relief to a Georgia death row inmate convicted of a 1992 murder. The Court rejected the argument that Terrell suffered prejudice as a result of his lawyer’s decision not to obtain a forensic pathologist, who would have testified that the victim was already dead when subjected to mutilation. The Court found that this evidence would have supported the prosecution’s view that the murder was done with malice and anger. The Court also found no ineffective assistance in his lawyer’s failure to challenge an armed robbery aggravating factor. Terrell’s lawyer focused on a residual doubt theory, rather than rebutting the State’s theory regarding armed robbery. The Court found that this choice did not change the outcome of the sentencing.