Whatley: Reversing Grant of Habeas Claim on Mitigation Claim and Affirming Denial of Habeas on Shackling Claim

In Whatley v. Ga. Diagnostic and Classification Center, No. 13-12034 (June 20, 2019) (Tjoflat, Hull, Jordan), the Court reversed the partial grant of habeas relief and affirmed the partial denial of habeas relief in a capital case.

The first claim, on which the district court granted relief, was that the trial lawyer was ineffective for failing to investigate and present mitigating evidence at the penalty phase.  The Court reversed because, on the prejudice prong, the district court failed to defer to the state supreme court's decision under AEDPA, applying de novo instead and re-weighing all of the evidence for itself.  Rather than remanding the case for the district court to conduct the correct analysis, the Court did so for itself and found that the state court's decision was not unreasonable.

The second claim, on which the district court denied relief, was that the trial lawyer was ineffective for failing to object to use of shackles during the sentencing hearing.  Although prejudice is typically presumed by the use of shackles when that claim is raised on direct appeal, the Court declined to presume such prejudice here, because a substantive shackling claim was procedurally defaulted on direct appeal, and so it was the defendant's burden to prove prejudice on collateral review under Strickland.  In that regard, the Court found that the defendant could not show that the state supreme court's decision declining to find actual prejudice was unreasonable.

Judge Jordan dissented as to the shackling claim, opining that the state court failed to conduct the prejudice inquiry with proper regard for the inherent harm that results from visible shackling.  He emphasized that the state court did not take into account the fact that the defendant wore shackles not only while taking the stand but also while being forced to re-enact the murder in front of the jury, with the prosecutor playing the director and victim in that re-enactment.  And he argued that the state court failed to analyze how the shackles may have affected the juror's views regarding his propensity for future violence, one of the major theme's of the prosecutor's closing argument.

Fox: Upholding USSG 4B1.5(b)(1) Enhancement for a Pattern of Activity Involving Prohibited Sexual Conduct

In United States v. Fox, No. 18-10723 (June 13, 2019) (Martin, Tjoflat, Traxler), the Court upheld the defendant's 360-month sentence for production of child pornography.

First, the Court upheld a five-level enhancement under USSG 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct.  Joining every circuit to address the issue, the Court held that the enhancement does not require multiple victims; it may apply even where there is only a single victim.  The Court also rejected the argument that two unrelated instances of prohibited sexual conduct are necessary to trigger the enhancement; it requires only two separate and distinct incidents, related or not.  Lastly, the Court held that the enhancement could be based on conduct underlying the conviction.

Second, the Court held that the defendant's sentence was substantively reasonable, even though the defendant was 60 years old and unlikely to outlive his sentence.

Cooper: Affirming Wire Fraud and Sex Trafficking Convictions Over Multiple Challenges

In United States v. Cooper, No. 17-11548 (June 10, 2019) (Rosenthal, William Pryor, Newsom), the Court affirmed the defendant's convictions and sentences for wire fraud and sex trafficking over various challenges.

First, the Court rejected the defendant's hearsay/Confrontation Clause arguments.   As to an agent's testimony about the state of mind of foreign victims who did not testify, the Court found that, even if hearsay, the defense opened the door to the agent's testimony on cross examination.  And the agent did not offer testimonial statements from the individuals because he questioned them only to understand why they refused to testify, not to investigate or establish any element of the charged offenses.  As to the agent's testimony about statements made to him by men whose names were listed on visitor logs, the Court again found that the defense opened the door to that testimony.  And while the men's statements were testimonial, any confrontation clause violation was harmless in light of the other evidence at trial.  Finally, as to an agent's testimony that a victim had identified the defendant's voice during a monitored phone call, the Court found that the district court had ample other evidence establishing that identification and that the defendant's statements on the call were admissible as those of a party opponent.

As to additional evidentiary issues, the Court found that the defendant invited his claim of error regarding the admission of additional testimony by the agent.  The district court did not abuse its discretion in admitting evidence under Rule 404(b) because it showed his intent to operate a sex business, his knowledge of the type of business, and that he engaged in a knowing course of conduct.  And the Court rejected the defendant's argument that statements he made to officers outside of his apartment were involuntary, as there was no evidence of coercion.

The Court next found the evidence sufficient to support the defendant's convictions for wire fraud and sex trafficking.

The Court next rejected several claims of error relating to various jury instructions.   First, the district court properly refused to give a defense instruction that was confusing and misstated State Department regulations.  Second, the Court found no error in the court's instruction for using a facility in interstate and foreign commerce to promote an unlawful activity, in violation of 18 U.S.C. 1952(a)(3)(A).  Third, the Court found no error in the court's instruction for importing or attempting to import an alien for the purpose of prostitution or any other immoral purpose, in violation of 8 U.S.C. 1328.  Fourth, the Court found no error in declining to give an immunized-witness instruction because it was covered by the court's instruction to assess each witness's credibility.  Lastly, the Court found no error in declining to give a missing-witness instruction because there was no evidence that the witnesses were in the control of the government or that their testimony would have been favorable to the defense.

The Court next no prosecutorial misconduct when the prosecutor called the defendant a "two-faced fraud" and a "phony" during opening statements, as the government introduced evidence that the defendant used a fake name to run his prostitution business and used false pretenses to lure the victims to the United States.

Lastly, the Court found no error in applying the vulnerable-victim enhancement because the victims were from a foreign country, had difficulty speaking English, and had no other jobs, family, or place to stay without the defendant.