Cobb: Affirming 324-month sentence for fraudulent tax return filings

In U.S. v. Cobb, No. 15-12817 (Nov. 30, 2016), the Court affirmed the 324-month sentence of a defendant convicted of mail and wire fraud conspiracy, aggravated identity theft, and firearm possession, in a scheme involving using stolen identities to file hundreds of fraudulent tax returns. The Court rejected Cobb’s challenge to the $2.5 million loss amount to support an 18-level sentence enhancement, and the determination that the offense involved more than 250 victims, finding that the government presented sufficient evidence to support these calculations. The Court also rejected the challenge to the $1.8 million restitution award, finding that this was the amount of money the Internal Revenue Service paid out. The Court found that Cobb waived a challenge to the sentence enhancement for use of an unauthorized access device, and a challenge to the finding that a prior serious drug offense qualified him for an enhanced sentence, finding that he withdrew his objections to these enhancements at the sentencing hearing.

Ammar: Speedy Trial Act violation

In U.S. v. Ammar, No. 13-12044 (Nov. 29, 2016), the Court vacated a defendant’s conviction because of a violation of the Speedy Trial Act, and remanded for the district court to consider whether the dismissal of the indictment should be with, or without, prejudice. On September 1, 2011, Ammar was indicted, with other defendants, in a case in which the government was contemplating seeking the death penalty. This indictment started the 70-day Speedy Trial Act deadline. However, over Ammar’s repeated objections, the district court set the case for trial one year later. The district court rejected Ammar’s motion to dismiss for a Speedy Trial Act violation on the ground that the trial date was “by agreement of everybody.” This finding was factually inaccurate, as Ammar had repeatedly objected to the length of the delay. Further, an agreement of the parties does not satisfy the required “ends of justice” finding to justify tolling the Act’s 70-day deadline. The Court rejected the argument that a district court need not utter “magic words” to toll the deadline, finding that, even if this were possible, here the district court explicitly declined to make ends-of-justice findings, relying instead, erroneously, on the “agreement of everybody.” The Court left it to the district court to apply the statutory factors and make the determination whether the indictment should be dismissed with or without prejudice.

Gundy: Georgia burglary qualifies as generic burglary

In U.S v. Gundy, No. 14-12113 (Nov. 23, 2016), the Court (2-1) held that a Georgia burglary conviction qualified as a “crime of violence” for purposes of the Armed Career Criminal Act (ACCA). The Georgia statute defined burglary as unlawful entry “within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another . . .” The Court recognized that this definition swept more broadly than generic burglary, because it encompassed not only entry into buildings, but also into vehicles. However, based on Georgia caselaw, which requires an indictment to specify the location of an alleged burglary, the Court concluded that each of the locations were “locational elements,” not merely alternative means of committing burglary. As a result, the statute was “divisible.” Each location was a separate crime. Thus, the Court could examine the record of Gundy’s prior burglaries to determine whether Gundy’s prior burglaries qualified as generic burglaries. Because Gundy’s prior burglaries involved a “dwelling house” or a “business house,” they all qualified as generic burglaries for ACCA purposes. [Jill Pryor, J., dissenting, interpreted Georgia’s standard jury instructions’ reference to “building or dwelling” as referring to a single element, not as identifying separate crimes, and noted that, in burglary trials, Georgia juries are not required to agree on the type of dwelling at issue].

Error in verdict form merely clerical

In U.S. v. Davis, No. 15-10927 (Nov. 22, 2016), the Court rejected the argument that the trial court erred when it amended the judgments to change a count of conviction from “Robbery” in violation of 18 U.S.C. § 924(c), to possession of a firearm during a crime of violence in violation of § 924(c). The Court noted that the error in the initial judgment arose out of a mistake in the jury’s verdict form. However, the indictment, the parties’ closing arguments, the jury instructions, and the jury’s questions during deliberations indicate that it understood that the charge in this count was not “robbery,” but a § 924(c) firearm violation. Moreover, the overwhelming evidence in the case supported this conviction. The jury “inescapably” found that the defendants “used a gun.” The error in the verdict form was merely clerical.

Esprit: Florida burglary is not an ACCA "crime of violence"

In U.S. v. Esprit, No 14-13066 (Nov. 21, 2016), the Court held that, post-Johnson, Florida burglary in violation of Fla. Stat. § 810.02(1)(b)(1) is not a “crime of violence” for purposes of a sentence enhancement under the Armed Career Crimnal Act (ACCA). The Court determined that Fla. Stat. § 810.02(1)(b)(1) is an “indivisible” statute, because a jury is not required in its verdict to identify the means that were used to commit the burglary, whether by entering a building or entering a building’s “curtilage.” Unlawful entry of a building or its curtilage are possible alternative means of committing the offense of burglary, not alternative elements of the burglary offense. As a result, the “modified categorical approach,” which authorizes examining the facts underlying a conviction, does not apply. Consequently, since the Supreme Court in James held that the inclusion of “curtilage” in Florida’s burglary offense takes this offense outside the definition of generic burglary, which requires entry into, or remaining in, a building or other structure, Florida burglary did not qualify as a “crime of violence.” The Court therefore vacated Esprit’s sentence and remanded to the district court with instructions that he be resentenced without the ACCA enhancement.

Leon: No plain error constructive amendment

In U.S. v. Leon, No. 15-12578 (Nov. 16, 2016), the Court, on plain error review, rejected the argument that the district court constructively amended the indictment by allowing the defendant to be convicted of attempting to cause a bank not to file required currency transaction reports (CTRs) concerning currency transactions exceeding $10,000. The Court recognized that the word “structure” is contained in 31 U.S.C. § § 5423(a)(1), not in 5324(a)(3), the statute under which Leon was charged and convicted, and that the parties used the term “structuring” during trial. But both statutes are said to refer to a “structuring” transaction. As a result, there was no “plain error.” The Court also rejected a sufficiency of the evidence challenge.

Hernandez-Alberto: Incompetency claim tolls habeas limitations period

In Hernandez-Alberto v. Sec., Fla. Dep’t of Corrections, No. 14-14092 (Nov. 4, 2016), the Court held that, for purposes of the statute of limitations governing federal habeas petitions, a properly filed Florida postconviction petition claiming incompetency remains “pending” through the final termination of the postconviction proceedings despite the state court’s having found the prisoner competent before the end of those proceedings. Because the petitioner’s application was properly filed, and remained so throughout the period of his postconviction proceeding, it tolled the deadline to file his federal habeas petition.

Fritts: 1989 Florida robbery qualifies as ACCA "crime of violence"

In U.S. v. Fritts, No. 15-15699 (Nov. 8, 2016), the Court held that a 1989 armed robbery conviction in violation of Fla. Stat. § 812.13 qualified as a “crime of violence” under the Armed Career Criminal Act (“ACCA”). The Court noted that in U.S. v. Dowd, decided in 2006, it had held that a 1974 conviction for armed robber was a violent felony under ACCA. Under Dowd, a Florida armed robbery conviction qualifies under ACCA’s elements clause. The Court rejected the argument that the Supreme Court’s decision in Curtis Johnson altered the analysis. The Court further noted that U.S. v. Lockley, decided in 2011, had held that a 1991 armed robbery qualified as a crime of violence under the elements clause of the career offender Guideline. Lockley’s reasoning also governed Fritts’ 1989 conviction. The Court rejected the argument that, under Florida law, prior to 1997, only the slightest force was sufficient to convict a defendant of Florida robbery. The Court held that, to the contrary, the robbery statute required resistance that is overcome by the physical force of the offender.

Hughes: No speedy trial violation

In U.S. v Hughes, No. 14-14181 (Nov. 4, 2016), the Court rejected the defendant’s argument that his prosecution for being a felon-in-possession of a firearm should have been dismissed on Speedy Trial Act grounds. The Court found that the oral, pre-trial motion of the government for the detention of the defendant automatically triggered an excludable period from that day until the conclusion of the hearing on that motion. As a result, no Speedy Trial Act violation occurred. The Court rejected the argument that the period of delay was caused by the defendant’s non-excludable motion for a continuance. The Court also rejected Hughes’ claim that a juror was struck in violation of Batson. The government explained that it struck the juror because he had committed a felony and violated the terms of his resultant probation; these were not facially discriminatory reasons. The Court also rejected a Crawford v. Washington challenge to the admission of statements by a 911 caller. Citing Davis v. Washington, the Court explained that the 911 caller’s statements were non-testimonial. The Court further ruled that a jury instruction that told the jury that it took account of a defendant’s false exculpatory statement did not violate Hughes’ right to remain silent, when evidence was introduced that Hughes (falsely) denied knowledge of the firearm that was found by law enforcement. A false statement by a defendant may be considered as substantive evidence of guilt.

Campo: Circumstantial evidence supports murder conviction

In U.S. v. Campo, No. 14-15541 (Nov. 1, 2016), the Court affirmed the convictions and sentences of a defendant convicted of murder, firearm trafficking, and firearm possession. The Court rejected Campo’s challenge to the sufficiency of the evidence, noting the circumstantial evidence that supported the verdict of conspiracy to murder. The evidence showed that Campo intended to kill a former gun trafficking accomplice in order to prevent him from communicating with police about the scheme. Campo bragged about the killing almost a year after the fact. Cell phone records placed Campo’s phone near the scene of the crime at the time of the murder. DNA evidence also supported the verdict. Ballistics tests matched the firearms that were used in the murder to the type of barrel Campo used on his firearm. Sufficient evidence also supported the firearm trafficking conviction. On plain error review, the Court rejected the argument that, under Fed. R. Evid. 701, the victim’s brother should not have been allowed to testify that when he called police after seeing blood in a warehouse, he told police that he thought that Campo had killed his brother. The Court noted that this opinion testimony was based on the brother’s perceptions at the time, and therefore admissible. Under Fed. R. Evid. 704, this testimony was not objectionable even though it addressed an ultimate issue in the case. On plain error review, the Court also rejected the argument that it was a Double Jeopardy violation to convict Campo of causing the death of a person while using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(j), and also of the lesser offense of using a firearm in furtherance of a crime of violence, in violation of § 924(c). The Court noted the absence of Supreme Court caselaw supporting this argument, and Circuit precedent suggesting it was without merit.