Brester: No Brady violation in failure to disclose plea agreement loss provisions

In U.S. v. Brester, No. 13-15311 (May 20, 2015), the Court held that because Brester was not prejudiced by the failure to disclose his cooperating co-conspirators’ plea agreement provisions limiting their loss amount for sentencing purposes, this non-disclosure did not violate Brester’s rights under Brady v. Maryland. Turning first to the question of whether it had jurisdiction to review the district court’s denial of Brester’s motion for a new trial, the Court noted that Brester had failed to file a second notice of appeal from the denial of this motion. Although the “better practice” is to perfect a separate appeal from the denial of a motion for a new trial, when the government is not prejudiced – here, it briefed the issue on appeal – the Court has jurisdiction. Next addressing the merits, the Court found that the loss amount limitation of the co-conspirators’ plea agreements would merely have been cumulative impeachment evidence, which does not establish “prejudice” under Brady. The Court noted these co-conspirators' admissions, on cross-examination, of their motivation for their testimony against Brester.

Siegelman: Affirming 78-month sentence for former Alabama Governor

In U.S. v. Siegelman, No. 12-14373 (May 20, 2015), the Court affirmed the denial of a motion for a new trial, and the 78-month sentence, imposed at resentencing, of the former Alabama Governor convicted of fraud. Relying on the “law of the case” doctrine, the Court rejected Siegelman’s claim the U.S. Attorney continued to be involved in his prosecution after her disqualification based on conflict of interest. The Court noted that it had already rejected this argument when raised by a co-defendant, ruling that while the law categorically prohibits an interested person from controlling a defendant’s prosecution, it does not forbid an interested person from having any involvement in the prosecution. As to his sentence, Siegelman argued that the district court failed to explain why it treated certain transactions as part of “relevant conduct.” Because Siegelman did not object to the district court’s failure to explain why these transactions qualified as “relevant conduct,” the Court reviewed the issue for “plain error.” The Court found no plain error, because it was clear from the record that, even though the district court made no explicit finding, its loss calculations had relied on specific transactions. The Court also rejected the argument that the transactions should not have qualified as “relevant conduct.” The Court found a substantial connection with the bribery offense of conviction, because there was a common accomplice, a common victim (the citizens of Alabama), a common purpose (power and money), and a similar modus operandi.

Rosin: Evidence Contradicted Ineffective Assistance of Counsel Claim

In Rosin v. U.S., No. 14-10175 (May 14, 2015), the Court affirmed the denial of an evidentiary hearing to a defendant convicted of health care fraud who claimed in a § 2255 petition that his lawyers were ineffective for grossly underestimating the sentence Rosin would receive and failing to pursue a plea bargain. The Court noted that Rosin’s lawyers filed affidavits stating that he professed his innocence and insisted on going to trial. While testifying at trial, Rosin blamed others for his plight. At sentencing, Rosin did not accept personal responsibility for the conduct alleged. Thus, the record evidence contradicted Rosin’s claim that he would have accepted a guilty plea and not insisted on going to trial but for trial counsels’ alleged error.

Keelan: Restitution for Mental Health Treatment Expenses

In U.S. v. Keelan, No. 13-11878 (May 13, 2015), the Court affirmed an order of restitution for mental health treatment expenses imposed on a high school teacher convicted of unlawful enticement of a minor in sexual activity, in violation of 18 U.S.C. § 2422(b). The Court rejected the argument that the § 2422(b) violation was not a “crime of violence” for which restitution could be ordered. In cases involving sex crimes against minors “there is always a substantial risk that physical force will be used to ensure a child’s compliance with an adult’s sexual demands.” The Court noted that the defendant failed to raise below the argument that there was no “bodily injury,” and therefore found no “plain error.” The Court rejected the argument that mental health treatment expenses were not subject to restitution, noting the statute’s reference to “psychological care.” Finally, the Court rejected the argument that the defendant’s conduct did not cause the mental health treatment, agreeing with the district court that there was “no doubt” they were.

Quartavious Davis: No expectation of privacy in cell tower location information

In U.S. v. Quartavious Davis, No. 12-12928 (May 5, 2015) (en banc) (9-2), the Court held that no Fourth Amendment violation occurred when a court order, authorized by the Stored Communications Act, 18 U.S.C. § 2703(d), compelled a telephone company to produce records containing cell tower location information related to Davis’ cell phone. The Court noted that the Supreme Court in U.S. v. Miller and Smith v. Maryland held that individuals have no reasonable expectation of privacy in bank records, or dialed telephone numbers, because these records are maintained by a third-party business. Analogizing to these cases, and relying on a recent Fifth Circuit case, the Court found that cell tower location information is held by a third-party, not by the individual, and the individual therefore has no reasonable expectation of privacy in these records. The Court noted that unlike U.S. v. Jones, the case did not involve any surreptitious physical intrusion on the defendant’s private property. The Court also noted that cell tower information is less informative than the GPS tracking at issue in Jones. The Court also noted that there was “no overhearing or recording of any conversations.” [Judge Pryor, concurring, stated: “If a telephone caller does not want to reveal dialed numbers to the telephone company, he has another option: don’t place a call.”] [Judges Jordan and Rosenbaum, separately concurring, noted concerns that more protection might be needed in the future as location information from cell phones become more precise.] [Judges Martin and Jill Pryor, dissenting, found the third-party doctrine inapposite, noting that if applicable, it would eliminate expectations of privacy in email accounts, search-engine histories, shopping-site purchases, cloud-storage files, and the like.].