Preston: No habeas relief for 1978 murder

In Preston v. Sec., Fla. Dep’t of Corrections, No. 12-14706 (April 29, 2015), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1978 murder. The Court found that Preston was procedurally barred from raising his federal sufficiency of the evidence claim, because he failed to raise that claim before the Florida Supreme Court. The Court found that Preston merely claimed that the evidence was insufficient under Florida law, which has a different sufficiency standard than federal law. The Court added that the sufficiency claim would not have merit, because premeditated murder could be inferred from the victim’s brutal wounds, and other evidence.

Ford: Mail Fraud and Filing False Claims not Multiplicitous

In U.S. v. Ford, No. 14-10381 (April 28, 2015), the Court affirmed the convictions and sentence of a defendant charged with mail fraud, aggravated identity theft, and filing false tax refund claims with the Internal Revenue Service. The Court rejected Ford’s multiplicity challenge to the indictment, explaining that it was not multiplicitous to charge both mail fraud and filing false claims. The Court pointed out that mail fraud involved use of the mails, while filing false claims did not. Also, filing false claims involves an agency of the United States, while mail fraud does not. The Court rejected Ford’s argument that the admission of evidence of past conduct violated Rule 404(b). The Court explained that much the past conduct was “inextricably intertwined” with the charged offenses, and therefore fell outside the scope of Rule 404(b). Turning to sentencing, the Court rejected the argument that the enhancement for the number of victims did not apply. The Court noted that the limitation for aggravated identity theft offenses applied only to the “transfer, possession, or use of a means of identification” – not, as here, to the number of victims. In addition, the limitation did not apply to the mail fraud convictions of which Ford stood convicted, in addition to aggravated identity theft.

Creel: No mens rea required for "distribution" enhancement for child pornography

In U.S. v. Creel, No. 14-12438 (April 21, 2015), the Court held that the 2-level “distribution” enhancement of U.S.S.G. § 2G2.2(b)(3)(F) does not include a mens rea element, and affirmed the 84-month sentence imposed on a defendant convicted of receipt of child pornography. Creel objected to the “distribution” enhancement on the ground that he did not know that other users of the peer-to-peer file sharing program could access the child pornography that he had downloaded to his computer. The Court found that the plain language of the Guideline commentary did not require knowledge. The Court pointed out that the commentary defined “distribution to a minor” as “knowing” distribution. The Court found that the fact that one definition included a mens rea and the other definition did not implied that no mens rea was required in the other one. The Court cited like holdings of two other circuits, and acknowledged conflict with the holdings of four other Circuits.

Hill: Guideline commentary inconsistent with computer use guideline

In U.S. v. Hill, No. 14-13383 (April 17, 2015), the Court affirmed the imposition of the two-level enhancement for use of a computer to solicit a person to engage in unlawful sexual activity with a minor, pursuant to U.S.S.G. § 2G1.3(b)(3)(B), holding that the Guideline commentary was inconsistent with the Guideline and therefore did not govern the application of the enhancement. Hill pled guilty to conspiracy to engage in sex trafficking of minors. The Guidelines provide for a two-level enhancement if a defendant used a computer to “solicit a person to engage in prohibited sexual conduct with a minor.” The Guideline commentary, however, states that the enhancement applies only to use of a computer to communicate with a minor or a person exercising custody of the minor. Here, Hill used a computer for online ads offering minor girls for sex. Joining other Circuits to have so held, the Court held that the Guideline commentary’s limitation was inconsistent with the Guideline, and therefore not binding. The Court noted that the inconsistency was the result of a drafting error. Because Hill used his cellphone (which qualified as a “computer”) to place online ads, and his actions therefore fell “squarely within the language of the enhancement.”

Conner: Georgia Death Row inmate not intellectually disabled

In Conner v. GDCP Warden, No. 13-13928 (April 15, 2015), the Court affirmed the denial of habeas relief to a Georgia death-row inmate who claimed that he was intellectual disabled and therefore not subject to the death penalty. The Court held that the district court did not err, after holding an evidentiary hearing, in finding that Conner was not intellectually disabled. The Court noted the district court’s finding that Conner’s IQ hovered around 80, and otherwise did not have the lack of intellectual functioning, or lack of adaptive skills, associated with the intellectually disabled. Turning to Conner’s ineffective assistance of counsel claim, the Court noted that Conner himself instructed his lawyer at the sentencing phase not to present mitigation evidence. The Court found no support for that he would have allowed trial counsel to present mitigation evidence, and his willingness to do so at postconviction proceedings did not, without more, suffice. During the guilt phase of Conner’s trial, the prosecutor told the jury that he had practiced criminal law for seven years, that as district attorney he had prosecuted nine murder cases, but he had never sought the death penalty until Conner’s case. Conner’s counsel objected, and the trial court gave a curative instruction. The Georgia Supreme Court found the remark improper, but did not compel reversal. The Court did not find this resolution of this issue contrary to well-established law.

Albury: Sufficient evidence to support probable cause independent of unlawful search

In U.S. v. Albury, No. 12-15183 (April 9, 2015), the Court affirmed drug trafficking convictions rejecting a Fourth Amendment challenge to the search of a hotel room. The Court acknowledged that a search warrant was based in part on a search that violated the Fourth Amendment. But the Court found that independent of the unlawful search, the affidavit contained sufficient evidence to support a finding of probable cause. Albury had resided in a room at the hotel, prior to moving to another room where the unlawful search occurred. Inside the vacated room, the police found cocaine powder residue, two cookies of crack cocaine and baggies with cocaine residue. This information provided probable cause to search the new room, and the testimony that the police supervisor would have sought a warrant to search this room even without the information from the unlawfully searched room showed a warrant would have been sought even without the unlawful entry. The Court also rejected Albury’s challenge to the sufficiency of the evidence, finding that he exercised control over both hotel rooms in which contraband was found. He was the only guest renting the rooms, and the only person whose personal effects were found inside.

Asante: Affirming Gun Trafficking and Exporting Enhancements

In U.S. v. Asante, No. 13-15651 (April 6, 2015), the Court affirmed the imposition of firearms sentence enhancements. The Court rejected Asante’s challenge to the four-level enhancement, under USSG § 2K2.1(b)(5), for a firearms offender “engaged in the trafficking of firearms,” claiming there was no evidence that he knew his conduct would result in another’s unlawful possession, use or disposal of the firearms. The Court acknowledged that the government failed to show that Asante knew that the firearm would be transferred to individual with prior convictions. But the enhancement applied on the alternative ground that the firearms would be transferred to a person who would use them unlawfully. The Court found this could be inferred from the fact that Asante knew the firearms would be hidden in cars that were being shipped to Jamaica. The Court also rejected Asante’s challenge to the imposition of a four-level enhancement, under USSG § 2K2.1(b)(6)(A), for exporting firearms. Again, the fact that Asante knew the guns would be smuggled to Jamaica supported this enhancement. The Court rejected the argument that the imposition of both enhancements constituted “double counting.” The Court noted that knowing a firearm will be transferred to someone for unlawful use, and for export, are conceptually distinct. Finally, the Court rejected the argument that the district court should have redacted information from the PSI about threats Asante made, in a phone conversation from jail to his wife, against the prosecutor and the magistrate judge. Even if the rules do not require this information to be contained in the PSI, the district court had discretion to include it.

Alexander: Affirming conviction for selling cutting machines to Iran companies

In U.S. v. Alexander, No. 14-10253 (April 7, 2015), the Court affirmed a conviction for conspiring to sell cutting machines to companies in Iran, in violation of the International Emergency Economic Powers Act, 50 U.S.C. § 1705. The Court found that the district court did not abuse its discretion in denying Alexander’s request to take the deposition of a witness whose proposed testimony was “immaterial or cumulative.” In addition, one profered statement would have hearsay. And the witness was a fugitive from justice. The Court also found that the district court did not abuse its discretion in denying a motion for a mistrial after a juror complained that supporters of the defendant momentarily blocked her car in the parking lot. No one communicated with the juror, and the district court instructed the jury that there was no certainty who the people were, or had anything to do with the trial. The jury affirmed that they could remain impartial. Finally, the district court did not error when it explained to the jury, during the testimony of a witness, the legal standard for conspiracy, because the district court was not commenting on the evidence but clarifying the law. The district court also did not err when it explained the limited purpose of admitting testimony – credibility of witnesses – about a “feud” between Alexander and his business partners.

Dimitrovski: One-time event can involve ongoing, sophistidcated operation

In U.S. v. Dimitrovski, No. 14-12417 (April 2, 1015), the Court affirmed the imposition of a two-level enhancement under USSG § 2B1.1(b)(14)(B), which applies “if the offense involved an organized scheme to steal or to receive . . . goods or chattels that are part of a cargo shipment.” Dimitrovski argued that the enhancement should not apply because it was intended for an ongoing, sophisticated operation analogous to a “chop shop,” not to a one-time event where a defendant attempts to resell stolen items. Rejecting the argument, the Court found an “organized, ongoing, and sophisticated operation. The defendant purchased a stolen cargo, loaded it onto one of his trailers, and in one day’s time had it shipped to Miami. He was a “savvy” businessman in negotiating the price over several days, and wore latex gloves to conceal his activities. Dimitrovski told the informant that he could bring more loads in the future. “An offense may involve an ongoing, sophisticated operation even if it is committed only once.”

Sosa: Defendants knew of government cooperator

In U.S. v. Sosa, No. 13-14141 (April 3, 2015), the Court rejected the argument of Medicare fraud defendants that their guilty pleas were not voluntary because the government did not disclose until sentencing that the government could have stopped the fraud, but instead allowed the loss to grow for months with the participation of a government cooperator. Had they known of the government’s inaction, the defendants would have contested the amount of forfeiture. Rejecting this argument, the Court found that the defendants “knew that the doctor involved in their four-month long conspiracy was a government cooperator.” Defendants also claimed that the plea agreement only agreed to forfeiture of two houses, not cars. The Court found that placed in context, the agreements did not state that the house-forfeiture would fully satisfy the money judgment.